FEDERAL COURT OF AUSTRALIA

 

Cubillo v Commonwealth [2000] FCA 1084


ABORIGINES – children –separation – whether forced or consensual – whether application of general policy without regard to individual circumstances

 

EVIDENCE – demarcation between matters known to a judge personally and matters before a court formally as evidence – trial judge bound by evidence formally before the court – ability of a trial judge to accept part only of a witness’ evidence – weight to attach to documentary evidence – application of the Briginshaw test to a non party witness – whether principles of Briginshaw have equal and like application to persons whether they are, or are not, parties to the litigation – rule in Jones v Dunkel – absence of witnesses claimed to be material witnesses – tendency evidence in civil trials – admissibility – s 97 Evidence Act 1995 (Cth) – whether risk of concoction


WRONGFUL IMPRISONMENT – whether applicants detained – wrongful imprisonment and deprivation of liberty – whether detention unlawful – whether statutory powers exceeded – whether application of general policy without regard to individual circumstances


STATUTORY DUTY – whether statutory duty arose – whether statute precluded duty arising – whether statute allowed recovery for breach of statutory duty


NEGLIGENCE / DUTY OF CARE – whether duty owed – whether general duty of care owed in exercise of powers under welfare statutes – whether breach of duty

 

EQUITY – fiduciary duty – guardianship – exercise of statutory powers over wards – whether Commonwealth owed and breached fiduciary duties to part Aboriginal people – psychiatric injury – defences – limitation statute not applying to equitable actions – limitation by analogy – laches

 

VICARIOUS LIABILITY – liability of the Commonwealth – whether tortfeasor servant or agent of Commonwealth – application of independent discretion rule – whether chain of command or control – whether Commonwealth controlled the administration of Aboriginal affairs in the Northern Territory as part of its ordinary governmental functions – whether Director of Native Affairs or Welfare subject to the control of the Commonwealth through the Administrator in the performance of his functions


DAMAGES – assessment of damages – loss of cultural, social and spiritual life – loss of entitlements and advantages under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – mitigation – exemplary damages – whether conscious and contumelious disregard for welfare and rights of the applicants – wanton cruel and reckless indifference – aggravated damages


LIMITATION OF ACTIONS – applications for extension of time – whether extensions should be granted – delay in bringing action – persons under disability – prejudice to the Commonwealth – hardship – whether material facts became known to the applicants

 

 

The Constitution ss 49, 75(iii)

Judiciary Act 1903 (Cth) s 44

Parliamentary Privileges Act 1987 (Cth) s 16

Rights of the Terminally Ill Act 1995 (NT)

Medical Treatment (Amendment) Bill 1995 (ACT)

Euthanasia Laws Act 1997 (Cth)

Criminal Code (Qld)

Criminal Law Consolidation Act 1935 (SA) s 82A

Criminal Code (NT) s 174

Health Act 1911 (WA) s 334

Defence Act 1903 (Cth) s 61A

Criminal Code (Tas) ss 122, 123

Human Rights (Sexual Conduct) Act 1994 (Cth)

Family Law Act 1975 (Cth)

Aboriginals Ordinance 1918  (NT) ss 3, 3A, 4, 5, 6, 6(1), 6(2), 7, 8, 13, 13(6), 16, 17

Aboriginals Ordinance 1911 (NT)

Northern Territory Aboriginals Act 1910 (SA)

Welfare Ordinance 1953 (NT) ss 8, 14, 17, 17(2), 24, 32,

Northern Territory Acceptance Act 1910 (Cth) s 6(1)

Northern Territory (Administration) Act 1910 (Cth) ss 4(1), 4(2), 13(1)

Northern Territory (Administration) Act 1947 (Cth) s 4U

Evidence Act 1995 (Cth) ss 55, 60, 73, 74, 97

Limitation of Suits and Actions Act 1866 (SA)

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 23(3)

Limitation of Actions Act 1936 (SA) s 48

Statutes Amendment (Miscellaneous Provisions) Act 1972 (SA)

Limitation Act 1969 (NSW) ss 60E(1)(b), 60G, 60I(1)



Welfare Regulations (NT) rr 12, 13, 14

Evidence Regulations 1995 (Cth) rr 6, 6(2)



Cubillo v The Commonwealth (1999) 89 FCR 528 referred to

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Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 cited

Cekan v Haines (1990) 21 NSWLR 296 cited

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State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 considered

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Neal v The Queen (1982) 149 CLR 305 noted

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G v H (1994) 191 CLR 387 cited

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Jobling v Blacktown Municipal Council [1969] 1 NSWLR 129 noted

Attorney-General (NSW) v Perpetual Trustee Co Ltd [1995] AC 457 noted

Fowles v Eastern & Australian Steamship Co Ltd [1916] 2 AC 556 discussed

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Oceangas (Gilbraltar) Ltd v Port of London Authority (The Cavendish) [1993] 2 Lloyd’s Reports 292 considered

Field v Nott (1939) 62 CLR 660 discussed

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Metcalfe v Heatherington (1855) 11 Ex 257 noted

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Groves v Commonwealth (1982) 150 CLR 113 noted

Little v Commonwealth (1947) 75 CLR 94 cited

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Zachariassen v The Commonwealth (1917) 24 CLR 166 considered

Thorne & Rowe v State of Australia [1964] WAR 147 considered

Inglis v Commonwealth Trading Bank (1969) 119 CLR 334 considered

Haines v Bendall (1990) Aust. Torts Reports 81-005 cited

Superannuation Fund Investment Trust v Commissioner of Stamps of the State of South Australia (1979) 145 CLR 330 considered

Attorney-General (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 applied

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Watson v Marshall & Cade (1971) 124 CLR 621 cited

Spautz v Butterworth (1996) 41 NSWLR 1 cited

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Attorney-General (NT) v Minister for Aboriginal Affairs (1986) 67 ALR 282 cited

Casley v The Commonwealth (1980) 30 ALR 38 cited

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The Council of the City of Parramatta v Pestell (1972) 128 CLR 305 noted

Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 cited

Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169 mentioned

Northern Territory v Mengel (1995) 185 CLR 307 cited

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X (Minors) v Bedforshire County Council (1995) 2 AC 633 considered and discussed

Crimmins v Stevedoring Industry Finance Committee (1999) 167 ALR 1 followed

Bienke v Minister for Primary Industries & Energy (1996) 135 ALR 128 cited

Sutherland Shire Council v Heyman (1985) 157 CLR 424 cited

Hillman v Black (1996) 67 SASR 490 cited

McMullin v ICI Australia (1997) 72 FCR 1 cited

Byrne v Australian Airlines Ltd [1995] 185 CLR 410 cited

Dorset Yacht Co. Ltd v Home Office [1970] AC 1004 cited

Anns v Merton London Borough Council [1978] AC 728 referred to

Barrett v Enfield London Borough Council [1999] 3 All ER 193 discussed and considered

Osman v UK (1998) 5 BHRC 293 referred to

Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238 referred to

Osman v Ferguson [1993] 4 All ER 344 referred to

Rowling v Takaro Properties Ltd [1988] 1 All ER 163 referred to

Lonrho Plc v Tebbit [1991] 4 All ER 973 referred to

Attorney-General v Prince & Gardner [1998] 1 NZLR 262 discussed and considered

B v Attorney-General [1999] 2 NZLR 296 mentioned

W v Attorney-General [1999] 2 NZLR 709 mentioned

Hahn v Conley (1971) 126 CLR 276 considered

Perre v Apand Pty Ltd (1999) 164 ALR 606 cited

TC v State of New South Wales [1997] NSWSC 31 distinguished

Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 cited

Breen v Williams (1996) 186 CLR 71 cited

Northern Land Council v Commonwealth of Australia (1987) 75 ALR 210 discussed

The Wik Peoples v The State of Queensland (1996) 187 CLR 1 referred to

Bennett v Minister for Community Welfare [1992] 176 CLR 408 discussed

Williams v Minister, Aboriginal Land Rights Act 1983 [No 1] (1994) 35 NSWLR 497 considered

Paramasivam v Flynn (1998) 160 ALR 203 applied

M(K) v M(H) (1992) 96 DLR (4th) 289 considered

Brunninghausen v Glavanics (1999) 46 NSWLR 538 considered

Clay v Clay (1999) 20 WAR 427 considered

Lovejoy v Carp & Ors [1999] VSC 223 referred to

Prince v Attorney-General [1996] 3 NZLR 733 cited

Braedon v Hynes (Maurice J, 24 July 1986 NT Supreme Court, unreported) cited

Ward v Walton (1989) 66 NTR 20 considered and applied

Cartledge v E Jopling & Sons Ltd [1963] AC 758 cited and discussed

S v G [1995] 3 NZLR 681 referred to

Lovett v Le Gall (1975) 10 SASR 479 cited

Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 followed

Wright v Donatelli (1995) 65 SASR 307 cited

South Australia v Johnson (1982) 42 ALR 161 discussed

Ulowski v Miller [1968] SASR 277 cited

Forbes v Davies (1994) Aust Torts Reports 61,392 cited

Harris v Commercial Minerals Ltd (1996) 186 CLR 1 cited

CRA Limited v Martignago (1996) 39 NSWLR 13 referred to

Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 discussed

Sydney City Council v Zegarac [1998] 43 NSWLR 195 considered

Holt v Wynter [2000] NSWCA 143 referred to

Salido v Nominal Defendant (1993) 32 NSWLR 524 referred to

George v Estate of Bailey & Ors (1998) Aust Torts Reports81-455 referred to

Lindsay Petroleum Co v Hurd (1874) 5 LRPC 221 cited

Orr v Ford (1989) 167 CLR 316 cited

Permanent Building Society (in liq) v McGee (1993) 11 ASCR 260 referred to

Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187 referred to

Bennett v Minister of Community Welfare (1992) 176 CLR 408 cited

Motor Terms Co Pty Ltd v Liberty Insurance Ltd (in liq) (1967) 116 CLR 177 cited

R v Turner (1974) 60 Crim App R 80 cited

March v Stramere (E & H) Pty Ltd [1990-1991] 171 CLR 506 followed

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388 referred to

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 followed

Fitzgerald v Penn (1954) 91 CLR 268 referred to

Chappel v Hart (1998) 195 CLR 232 followed

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 cited

Napaluma v Baker (1982) 29 SASR 192 cited

Dixon v Davies (1982) 17 NTR 31 referred to

Weston v Woodroffe (1985) 36 NTR 34 referred to

Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240 considered

R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 cited

British Westinghouse Electric Company Ltd v Underground Electric Railways Company Ltd [1912] AC 673 cited

Payzu Ltd v Saunders [1919] 2 KB 581 cited

Sotiros Shipping Inc v Sameiet Solholt [1983] 1 Lloyd’s Rep 605 cited

Sharman v Evans (1977) 13 ALR 57 cited

The Argentino (1883) 13 P.D. 191 cited

Todorovic v Waller (1991) 150 CLR 402 followed

National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 followed

Lee v Redding (1981) 28 SASR 372 referred to

Redding v Lee (1983) 151 CLR 117 referred to

Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 cited

Gray v Motor Accident Commission (1998) 196 CLR 1 considered

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984) 155 CLR 448 cited

Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 cited


 

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LORNA CUBILLO v COMMONWEALTH OF AUSTRALIA

DG 14 OF 1996



PETER GUNNER v COMMONWEALTH OF AUSTRALIA

DG 21 OF 1996


O’LOUGHLIN J

11 AUGUST 2000

DARWIN


IN THE FEDERAL COURT OF AUSTRALIA

 

NORTHERN TERRITORY DISTRICT REGISTRY

 

 

 

BETWEEN:

LORNA CUBILLO                                                   DG 14 OF 1996

Applicant

 

AND:

COMMONWEALTH OF AUSTRALIA

Respondent

 

JUDGE:

O’LOUGHLIN J

DATE OF ORDER:

11 AUGUST 2000

WHERE MADE:

DARWIN

 

 

 

 

 

 

 

 

 

THE COURT ORDERS THAT:

 

1          The application for an extension of time under s 44(b) of the Limitation Act 1981 (NT) is refused and each claim is dismissed.

2          Any question of costs is reserved for further consideration.

 

 

 

 

 

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

 

NORTHERN TERRITORY DISTRICT REGISTRY

 

 

BETWEEN:

PETER GUNNER                                                     DG 21 OF 1996

Applicant

 

AND:

COMMONWEALTH OF AUSTRALIA

Respondent

 

JUDGE:

O’LOUGHLIN J

DATE OF ORDER:

11 AUGUST 2000

WHERE MADE:

DARWIN

 

 

 

 

 

THE COURT ORDERS THAT:

1          The application for an extension of time under s 44(b) of the Limitation Act 1981 (NT) is refused and each claim is dismissed.

2          Any question of costs is reserved for further consideration.

 

 

 

 

 

 

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


Index

An Introduction                                                                                          Paragraph No

The Stolen Generation                                                                        1 – 5

Mrs Cubillo – an introduction                                                                        6 – 11

Mr Gunner – an introduction                                                                       12 – 14

The History of the Litigation                                                                        15 – 23

Witnesses for Mrs Cubillo                                                                                   24

Witnesses for Mr Gunner                                                                            25 – 26

Witnesses for the Commonwealth                                                               27 – 52

Deceased and Missing “witnesses”                                                              53 – 63

Bringing Them Home                                                                                  64 – 81

Changing Standards                                                                                  82 – 105

The Commonwealth – an introduction                                         106 – 117

Accepting only part of the Evidence of a Witness                                     118 – 125

Documents                                                                                             126 – 127

The Relevant Legislation                                                                         128 – 164

Policy Issues                                                                                           165 – 190

The McEwen Policy of 1939                                                                  191 – 205

The Wave Hill incident and the Leydin Report                             206 – 228

The Hon Paul Hasluck MP                                                                     229 – 259

The 1952 Policy – its end                                                                       260 – 262

The Milliken Tests                                                                                  263 – 300

Was there an Indiscriminate Policy of Removal?                                      301 – 321

The Relationship between the Commonwealth and the Missions  322 – 345

The Briginshaw Test                                                                               346 – 352

The Rule in Jones v Dunkel                                                                    353 – 362

Lorna Nelson Cubillo and The Retta Dixon Home

Lorna Nelson Cubillo and The Retta Dixon Home                                   363 – 409

The Phillip Creek Native Settlement                                                        410 – 434

Phillip Creek to the Retta Dixon Home                                        435 – 457

The Four Tennant Creek Women                                                            458 – 500

Who Removed the Children from Phillip Creek                                       501 – 511

The Retta Dixon Home                                                                           512 – 706

The Interview of Lorna Cubillo by Mai Katona                            707 – 736

 

Peter Gunner and St Mary’s Hostel

            Peter Gunner and St Mary’s Hostel                                                         737 – 891

            Kevin Constable                                                                                     892 – 940

            Evidence of Sexual Impropriety                                                 941 – 1075

Causes of Action

            Causes of Action                                                                                  1076 – 1082

            Vicarious Liability                                                                                 1083 – 1133

            The Institutions as Agents of the Commonwealth                                   1134 – 1142

            False Imprisonment                                                                               1143 – 1174

            Statutory Duty                                                                          1175 – 1193

            Duty of Care                                                                                        1194 – 1269

            Fiduciary Duty                                                                          1270 – 1307

            Extension of Time                                                                                 1308 – 1425

            Laches                                                                                                 1426 – 1434

            Psychiatric Evidence                                                                             1435 – 1485

            Damages                                                                                              1486 – 1532

            Damages – Conclusion                                                                         1533 – 1547

            Exemplary Damages                                                                             1548 – 1559

            Conclusion                                                                                          1560 – 1565


Schedule                                                                                                   Pages 674 – 677


IN THE FEDERAL COURT OF AUSTRALIA

 

NORTHERN TERRITORY DISTRICT REGISTRY

 

 

 

BETWEEN:

LORNA CUBILLO                                                   DG 14 OF 1996

Applicant

 

AND:

COMMONWEALTH OF AUSTRALIA

Respondent

 

 

 

BETWEEN:

PETER GUNNER                                                     DG 21 OF 1996

Applicant

 

AND:

COMMONWEALTH OF AUSTRALIA

Respondent

 

 

JUDGE:

O’LOUGHLIN J

DATE:

11 AUGUST 2000

PLACE:

DARWIN



REASONS FOR JUDGMENT

The Stolen Generation

1                     The applicants, Mrs Lorna Cubillo and Mr Peter Gunner, are said to be members of “the Stolen Generation”.  That is the term that has been widely used to refer to the former practice of taking part Aboriginal children from their families and placing them in missions or institutions.  Mrs Cubillo has claimed that in 1947 she and fifteen other children were forcibly removed by servants or agents of the respondent from the Phillip Creek Native Settlement and thereafter detained in the Retta Dixon Home in Darwin.  Mr Gunner has claimed that in 1956 he was forcibly removed by servants or agents of the respondent from Utopia Station and thereafter detained in St Mary’s Hostel in Alice Springs.  The applicants have instituted proceedings against the respondent, the Commonwealth of Australia (“the Commonwealth”), alleging that it is the party which bears the legal responsibility for the injuries and damages that they have suffered as a result of their removal and detention.  Their claims for compensation have been rejected by the Commonwealth.

2                     The opening statement in the closing submissions of counsel for the applicants laid out the base upon which these proceedings were fought:

“These cases concern great injustice done by the Commonwealth of Australia to two of its citizens.  By the actions of the Commonwealth, Lorna Cubillo and Peter Gunner were removed as young children from their families and communities.  They were taken hundreds of kilometres from the countries of their birth.  They were prevented from returning.  They were made to live among strangers, in a strange place, in institutions which bore no resemblance to a home.  They lost, by the actions of the Commonwealth, the chance to grow among the warmth of their own people, speaking their people’s languages and learning about their country.  They suffered lasting psychiatric injury.  They were treated as orphans when they were not orphans.  They lost the culture and traditions of their families.  Decades later, the Commonwealth of Australia says in this case that it did them no wrong at all.”

3                     Neither the evidence in this trial, nor these reasons for judgment, deny the existence of “the Stolen Generation”.  Writings, both contemporary and historical, (not all of which were presented as evidence in this trial) tell tragically of a distressing past.  Many would take it for granted that “the Stolen Generation” is a catch phrase that truly describes what happened to many part Aboriginal children for many years.  But this trial has focussed primarily on the personal histories of two people:  Lorna Cubillo and Peter Gunner.  Material was placed before the Court that addressed the policies of the Commonwealth Government since the turn of the twentieth century.  Ministerial statements and the writings of senior public servants and others were received into evidence on the same subject.  However, whilst in no way diminishing their importance, it remains the fact that they were, for the most part, aids in the understanding of the personal circumstances of the two applicants.

4                     There were excursions into the lives of some other part Aboriginal men and women and I will mention them later in these reasons.  But the matter of importance is to stress that the lives of Lorna Cubillo and Peter Gunner must not be treated as symptomatic of the lives of all part Aboriginal children in the 1940s and the 1950s.  Indeed the evidence showed that their separate circumstances were quite different.  It is said that many hundreds, perhaps thousands, of part Aboriginal people have instituted like proceedings against the Commonwealth and that this number may only be some of those who had been institutionalised as children.  However, putting Mrs Cubillo and Mr Gunner to one side, only eight of those came forth as witnesses for the applicants; and four of them conceded in cross-examination that they had been placed in the institution at the request of their parents.

5                     Then there was the case for the Commonwealth:  three of its witnesses, who as part Aboriginal children, were placed in institutions, gave evidence saying how pleased they were that they had had the opportunity of a western education.  Furthermore, the evidence in this trial was limited to events that occurred in the Northern Territory of Australia; no evidence was placed before the Court concerning “the Stolen Generation” in the States.  This brief summary should be sufficient, without more, to explain why the evidence in this trial cannot be used as a base to examine the breadth of the term “the Stolen Generation”.  The evidence showed that broad generalisations cannot be made.  In particular, the mere fact that a part Aboriginal child was placed in an institution does not, without more, justify that person claiming that he or she is a member of “the Stolen Generation”.  In every case it will be necessary to question why was the child institutionalised?  Who was responsible?  And was it necessary or desirable in the interests of the child?  Many of the official writings and other papers that were tendered during the course of the trial will require scrutiny but, in general, it can be said that the official writings during the periods that were relevant to Mrs Cubillo and Mr Gunner, while strongly favouring a policy of assimilation, claimed to do so upon the premise that it was in the best interests of the child.  That was a view that was propounded by many people who were called as witnesses for the Commonwealth.  They claimed that there was no general policy of forced institutionalisation of part Aboriginal children in their time.  They claimed that, unless it was a case of neglect or harm, no child was removed without the consent of his or her mother.  But those witnesses were also few in number.  Whilst none of them gave me any reason to doubt their honesty, I cannot regard their evidence as being any stronger than their personal experiences.

Mrs Cubillo – an introduction

6                     Mrs Cubillo, as a child, was known as Lorna Nelson and her tribal name was Napanangka.  According to her birth certificate, she was born on 8 August 1938 and that is the date of her birth as pleaded in sub par 1(h) of her further amended statement of claim.

7                     Mrs Cubillo said that the earliest memories of her childhood were of Banka Banka Station, a cattle property that was then operated by Mr Ted Ward and his wife Mary.  In circumstances that were challenged by the Commonwealth, Mrs Cubillo claimed that at some stage (probably in the early 1940s) a patrol officer, Bill Harney, and his assistant, Barney McGinness, took her away, forcibly, from her grandmother’s care at Banka Banka and placed her with the Aboriginal community in the ration depot at Seven Mile Creek (which was also known as “the Telegraph Station”).  Unfortunately, both Mr Harney and Mr McGinness are dead, as is Mrs Cubillo’s grandmother; so also are Mr and Mrs Ward.  No one else has been identified as a person who could have given evidence about the circumstances of her removal and no documentary evidence addressed the subject.

8                     Not long after Lorna’s removal to Seven Mile Creek, the Aboriginal community was moved to a new depot at Six Mile Creek.  That occurred in late 1942 when Lorna would have been about four years of age.  Both depots were north-east of Tennant Creek.  To get to Six Mile Creek, one drives north on the Stuart Highway from Tennant Creek for about ten kilometres (or seven miles) to “the Telegraph Station” which is just off the highway – about 100 metres or so to the east.  The new depot at Six Mile Creek lay about ten kilometres (or six miles) due east of “the Telegraph Station” on a rough bush track.  The Court viewed the location of the depot at Six Mile Creek but little remains to give any idea of what it might have looked like over fifty years ago.  When Lorna was living at the two depots, they were managed for a time by Mr William Arnold (“Arnold”) Long and his wife, Dorothy; at another stage, a Mr Jim Davy was the manager; all were missionaries working with an interdenominational body called the Aborigines Inland Mission of Australia (“the Aborigines Inland Mission”).  All are now dead, Mrs Long having died as recently as 8 June 1997.

9                     Towards the end of the Second World War, it became apparent that the water supply at the depot at Six Mile Creek was inadequate.  As a result, in about August or September 1945, the ration depot was moved to a new location on the banks of Phillip Creek, adjacent to the Manga-Manda Waterhole.  The Phillip Creek Settlement was north of Tennant Creek, near the Stuart Highway and about forty miles to the south of Banka Banka Station.  Lorna and all the other people who were living at the depot at Six Mile Creek were moved to the new location at Phillip Creek.

10                  Mrs Cubillo was one of sixteen part Aboriginal children who, in 1947, were taken by truck from the Phillip Creek Settlement to the Retta Dixon Home in Darwin.  The Settlement and the Home were both then conducted under the auspices of the Aborigines Inland Mission and Mr Ivor Thomas, a missionary, was the Superintendent at the Settlement at that time.  Miss Amelia Shankelton, who was the Superintendent of the Retta Dixon Home, had a significant part to play in the removal of the children and Mr Les Penhall, then a cadet patrol officer and an officer of the Northern Territory Administration, who gave evidence in the trial on behalf of the Commonwealth, drove the truck that carried the children to Darwin.  Lorna remained an inmate of the Retta Dixon Home until she turned eighteen in 1956.

11                  Mrs Cubillo gave evidence, at times in graphic detail, about the harshness and lack of affection that she and others allegedly suffered at the Retta Dixon Home at the hands of Miss Shankelton and two of her co-missionaries, Ms Dinham and Ms Spohn.  Those three women are dead and cannot now defend themselves or their institution.  She also made very serious accusations against Mr Des Walter, one of the male missionaries at the Home.  He is alive and he gave evidence on behalf of the Commonwealth.  He denied the many allegations that were levelled against him by Mrs Cubillo.

Mr Gunner – an introduction

12                  Mr Gunner’s background was not connected in any way with Mrs Cubillo’s.  He was born at or near the cattle station known as Utopia Station and, as a small child, came to the notice of a patrol officer, Ted Evans.  Later, he came to the notice of another patrol officer, Harry Kitching.  Mr Kitching recommended that Peter be removed to an institution if his mother, Topsy Kundrilba would give her consent.  The Commonwealth’s case is that her consent was given.  Peter was admitted to St Mary’s Hostel in Alice Springs on 24 May 1956.  St Mary’s was conducted as a Hostel for part Aboriginal children by the Australian Board of Missions under the auspices of the Anglican Church.  Mr Gunner claimed that his removal was forced on him by the Commonwealth against his wishes and those of his mother.

13                  Mr Kitching and Mrs Dora McLeod, who, with her late husband, owned the lease of Utopia Station in the 1950s, gave evidence for the Commonwealth, but their memories were impaired through age and infirmity.  Neither could speak with conviction about the circumstances of Peter’s removal from the Station.  Two elderly Aboriginal witnesses, Mr Johnny Skinner and Mrs Lena Pula, who were living at Utopia when Peter was taken to St Mary’s, gave evidence on his behalf.  Mr Skinner supported the claim that Peter was forcibly removed by patrol officers but Mrs Pula was not present on the day that Peter left Utopia and therefore could not speak about the circumstances of his removal.

14                  Mr Gunner’s complaints about the manner in which he was treated at St Mary’s were numerous.  But the most alarming complaint was his allegation that he had been sexually molested by Mr Kevin Constable, one of the missionaries.  Four other young boys, now men in their fifties, also gave evidence that, at some stage while they were resident at St Mary’s, they were molested, either by Mr Constable or by another missionary, Mr Malcolm Bald.  The four witnesses were Daniel Forrester, Stanley Scrutton, Wally Gardiner and a man whose name was suppressed from publication and to whom I shall refer as GK.  Mr Bald died as recently as 25 January 1998, but Mr Constable gave evidence for the Commonwealth.  He denied all accusations of impropriety.

The History of the Litigation

15                  Each of these matters was separately commenced by writ and statement of claim in the High Court of Australia.  The proceedings in the name of Mrs Cubillo were filed on 30 October 1996 and those in Mr Gunner’s name were filed a day later on 31 October.  As the Commonwealth was the respondent in both actions, the matters were within the original jurisdiction of that Court:  s 75(iii) of The Constitution.  However, with the consent of all parties, further proceedings were remitted by the High Court to the Federal Court of Australia by orders made a month or so later on 26 November, pursuant to s 44 of the Judiciary Act 1903 (Cth).  When the separate trials were called on for hearing, the parties consented to orders that they be heard together.  It was also agreed that the evidence in one matter would, so far as it may be applicable, be evidence in the other.

16                  Following upon the filing and serving of the two statements of claim, defences were filed in both actions on 21 February 1997 and amended defences were filed three weeks later on 14 March; replies were filed a week after that.  In October 1997, the applicant in each matter filed an amended statement of claim; that caused the Commonwealth to file further amended defences on 7 November 1997.  The parties thereafter engaged in some disputes about the sufficiency of the particulars in the pleadings and further and better particulars of the statements of claim and discovery were attended to during February 1998.  The applicants filed further amended statements of claim on 17 May 1999 and the respondent further amended defences on 4 June 1999.  Mrs Cubillo and Mr Gunner have claimed that their respective removals and detentions constituted “wrongful imprisonment and deprivation of liberty”.  That claim was the first of four alleged causes of action against the Commonwealth.  The remaining causes of action were said to be breaches of statutory duty, of fiduciary duty and of a general duty of care.  General damages, allegedly arising from mental and emotional distress and a post traumatic stress syndrome, were claimed in each case.  There were also claims for aggravated and exemplary damages.  In par 44 of Mrs Cubillo’s further amended statement of claim it was pleaded that:

“In the removal and detention of the Applicant the Respondent acted with a conscious and contumelious disregard for the welfare and rights of the Applicant or with a wanton cruel and reckless indifference to her welfare and rights, thereby causing the Applicant substantial distress, humiliation and injury to her feelings, and the Applicant is entitled to aggravated or exemplary damages.”

The same plea appeared in par 65 of Mr Gunner’s further amended statement of claim.

17                  Many allegations that were originally made by the applicants in their pleadings were withdrawn during the course of the trial.  That was not one of them.  On the first day and the last day of the trial the applicants were pursuing the same goal.  They set themselves the task of proving that a sovereign State acted with a “conscious and contumelious disregard for the welfare and the rights” of two small part Aboriginal children by forcibly separating them from their families against the wishes of their families.  Their alternative plea was that the Commonwealth acted with a “wanton cruel and reckless indifference” to their welfare and their rights.

18                  An important directions hearing took place on Thursday, 12 March 1998.  On that day counsel for the Commonwealth advised the Court that his instructions would be to move the Court, in due course, for orders which would include orders for the summary dismissal of both actions.  Based on that advice, the following directions were given in the two actions:

“(3)     In anticipation that the Commonwealth will file and serve a notice of motion seeking orders which include at least an order for summary dismissal, I list such a notice of motion for hearing in a venue to be advised on Monday 3 August 1998 at 10.15 am and set aside 5 days.

(4)     Order (3) is conditional upon the Commonwealth filing and serving its notice of motion and all supporting material by Friday 12 June.

(5)           The applicants if so advised shall file and serve any answering material by Friday 24 July.

(6)           Leave to the Commonwealth to file and serve answering material by Friday 31 July.

(7)           Both parties to file written submissions by Friday 31 July.

(8)           Any party may file and serve any other notice of motion with supporting material seeking any other order of an interlocutory nature as it may be so advised, but if any such notice of motion is filed it shall be filed and served, together with all material in support of the orders sought in time sufficient having regard to the provisions of the Rules of Court, to be returnable for argument on Monday 3 August.”

On the same date, 12 March 1998, allowance was made for the fact that the substantive trials might proceed.  Each was therefore listed to be called on for hearing on 1 March 1999 and three months were set aside for the hearings.

19                  In due course, the Commonwealth filed a notice of motion seeking orders of summary dismissal; however, it was accompanied by an affidavit in support of an order that the interlocutory hearing that had been listed to commence on Monday 3 August 1998 be vacated.  That affidavit was dated 5 June and was sworn by Michael Charles Cullen, a solicitor in the Office of Litigation in the employ of the Australian Government Solicitor.  Mr Cullen said that the Commonwealth now sought orders that the evidence of six nominated persons, all of whom were identified as intended witnesses in the Commonwealth’s defence, be taken prior to trial and that the week of 3 August 1998 be utilised for that purpose.  In a letter to the Court dated 3 June 1998, a copy of which was forwarded to the solicitors for the applicants and a copy of which was annexed to Mr Cullen’s affidavit, he had said:

“8.       Some important witnesses to the respondent’s defence are of a considerable age and frailty.  They range in age from 75 to 92.  I am advised by counsel that it is incumbent upon the respondent to do what it can to preserve this evidence before pressing its case that the respondent has been prejudiced by reason of the delay in bringing these actions.  If the parties were to proceed on 3 August 1998 with the application for summary dismissal and any application for extension of the limitation period then, with possible appeals, it might be 12 months or longer before evidence is taken in the proceedings.  In these circumstances it is highly likely that the evidence of these frail witnesses would be lost.

9.              For the reasons above, the respondent wishes to apply to the Court to:

(a)               vacate the timetable set on 12 March 1998 in relation to the hearing in the week commencing 3 August 1998; and

(b)               take the evidence of the more frail of the respondent’s witnesses in the week commencing 3 August 1998.”

20                  The solicitors for the applicant did not agree with the Commonwealth’s proposal but the Court acceded to it.  The six intended witnesses who had been named in Mr Cullen’s affidavit were Sister Eileen Heath, Mr Harry Kitching, Mrs Dorothy Bott, Mrs Eileen Barrett, Mr Ted Milliken and Mr Harry Giese.  In the events that transpired, Sister Eileen’s evidence was taken in Perth and Mr Kitching’s evidence was taken in Townsville during the week of 3 August 1998.  Sister Eileen was the founding Superintendent of St Mary’s Hostel for part Aboriginal children in Alice Springs; Mr Kitching was, as I have already indicated, a patrol officer with the Native Affairs Branch and was closely involved in the arrangements to have Mr Gunner placed in St Mary’s Hostel.  It had been intended to take Mrs Bott’s evidence in Townsville also, but her health did not permit it and, sadly, she died not long after on 1 September 1998.  Mrs Bott’s late husband, Archdeacon Bott, had been a one time Superintendent of St Mary’s Hostel.  No attempt was made by the Commonwealth to obtain the evidence of Mrs Barrett nor of Messrs Milliken and Giese and no explanation was offered for this apparent change in position, although it subsequently transpired (in October 1999) that medical evidence was led by the Commonwealth to the effect that Mr Giese’s state of health was such that it would be inappropriate for him to be called as a witness.  I accepted that medical evidence.  Mr Milliken was duly called as a witness for the Commonwealth in the trial but nothing further was heard about Mrs Barrett until very late in the trial when the Court was informed that the Commonwealth did not then “rate her” as important.

21                  As a result of the decision to utilise the week of 3 August 1998 in taking evidence, the orders of 12 March were vacated and, in lieu, it was ordered that the orders sought by the Commonwealth in its notice of motion would be the subject of argument in March 1999 immediately following the conclusion of the opening addresses of counsel for the applicants and the Commonwealth.

22                  On 1 March 1999, both cases were called on for hearing in Darwin.  Mr Rush QC, assisted by Mr Dreyfus QC and Ms Richards appeared for both applicants; Mr Dreyfus had, by then, replaced Mr Keon-Cohen QC who had earlier appeared for the applicants during the week of Monday 3 August 1998.  Mr Meagher QC, together with Ms Hollingworth, Dr Perry and Ms Beaton-Wells appeared for the Commonwealth.  Mr Rush QC opened his case for the applicants; thereafter Mr Meagher QC opened for the Commonwealth and, upon the conclusion of his opening, moved the Court for the orders in the notice of motion that have earlier been identified in these reasons.

23                  On 30 April 1999, the Court dismissed the Commonwealth’s application for summary judgment:  Cubillo v The Commonwealth (1999) 89 FCR 528 (“the interlocutory judgment”) and the trial resumed in Darwin on 10 August 1999.  To accommodate the convenience of witnesses, the Court heard evidence in Darwin and then moved to Tennant Creek, Alice Springs and Melbourne before concluding evidence in Darwin; final submissions, due to the consideration of counsel for which I am most grateful, were heard in Adelaide.  The last of the oral submissions were made on 31 March 2000 and the last of the written submissions were received on 10 May 2000.

Witnesses for Mrs Cubillo

24                  Mrs Cubillo’s witnesses can be divided into four groups.  First, there was the evidence of four elderly Aboriginal women, Kathleen Napanangka, her sister Eileen Napanangka, Bunny Napurrula and her sister Annie Napurrula.  Their evidence was directed, in the main, to the circumstances of the removal of the group of part Aboriginal children (of whom the young Lorna Nelson was one) from the Phillip Creek Native Settlement to the Retta Dixon Home.  The last three were living at the Phillip Creek Settlement at the time and each gave evidence of her memories of the day when the children were taken away; the first of them, Kathleen Napanangka, was living with her husband at Banka Banka Station, where he was employed as the head stockman.  Secondly, there were the two witnesses, Mr James (“Jimmy”) Anderson and Mr William (“Willy”) Lane, who, like Mrs Cubillo, were children who were removed from Phillip Creek and taken, with her, to the Retta Dixon Home.  Thirdly, there was the evidence of Mrs Mai Katona and Mrs Maxine Hill.  Neither of them was a Phillip Creek child but they were both inmates of the Retta Dixon Home when Mrs Cubillo was there.  The fourth group consisted of expert witnesses.  Dr McGrath, an historian, gave evidence about community standards, as they existed in the 1940s and 1950s, in relation to the removal of part Aboriginal children from their mothers.  Her evidence was also relevant to Mr Gunner’s claim.  The remaining expert witnesses were Ms Petronella Vaarzon-Morel, an anthropologist, Drs Waters and Gibney, psychiatrists, and Mr David Avery, a legal practitioner in the employ of the Central Land Council.  Mr Avery’s evidence was also relevant to Mr Gunner’s claim as was the evidence of Dr Waters.

Witnesses for Mr Gunner

25                  I have already introduced Mr Gunner’s first two witnesses, Mr Skinner and Mrs Pula; they told of aspects of his life as a child at Utopia Station.  Next there were four witnesses who, as boys, were inmates at St Mary’s Hostel at the same time as Mr Gunner; they told that they, like him, had been sexually molested by a member of the staff at St Mary’s.  Mr Gunner also called a former senior officer in the Welfare Branch of the Northern Territory Administration, Mr Reg Worthy.  Mr Worthy, who was exceptionally critical of St Mary’s, was born on 5 August 1920; he was seventy-nine years of age when he gave evidence in these proceedings.  After obtaining a diploma, following a two year course of studies at the Melbourne Bible Institute, he joined the YMCA as a welfare officer with the second AIF; he was discharged from the Army on medical grounds in 1943 and resumed civilian life with the YMCA, working in Victoria at the Brunswick Youth Centre.  He combined his work commitments with further studies at the Melbourne University obtaining first, a Diploma in Social Studies and, later, a Bachelor of Arts.  He progressed to the position of a probation and parole officer in Victoria and from there he was appointed, in July 1962, to the position of Administrative officer, General Welfare in the Welfare Branch of the Northern Territory Administration.  Mr Worthy remained in that position until December 1965 when he returned to Melbourne to become a social worker with the Commonwealth Department of Social Services.  In 1968, Mr Worthy was appointed the director of the newly formed Victorian Department of Aboriginal Affairs; in 1974, when the Commonwealth entered that field, he became a regional director in the Commonwealth Department, retiring as a regional director in 1978.  When Mr Worthy arrived in Darwin in 1962, Lorna Nelson had left the Retta Dixon Home but Peter Gunner was still residing at St Mary’s Hostel.  Mr HC (“Harry”) Giese was the Director of Welfare and Mr Ted Milliken was the Assistant Director.  Mr Les Penhall was the Assistant Director Southern Division stationed at Alice Springs; Mr Billy McCoy was also at Alice Springs as were Sister Eileen Heath and Mrs Rene Ballagh in their capacity as welfare officers.

26                  Mr Gunner’s next witness was Mrs Wonka.  She remembered him from her school days at the Hartley Street School at Alice Springs.  She had been a student at the same time as Peter.  Mr Gunner’s remaining witnesses were Dr Morton, an anthropologist and Dr Phillips, a psychiatrist.

Witnesses for the Commonwealth

27                  The witnesses for the Commonwealth can be divided into three groups.  The evidence of the first group concentrated on Mrs Cubillo or the Retta Dixon Home while the evidence of the second group was limited to Mr Gunner or St Mary’s Hostel.  The remaining group, comprising mostly former patrol officers and other employees of the Native Affairs Branch or its successor, the Welfare Branch, gave evidence that had relevance and general application to the claims of both applicants.

28                  The calibre of the former officers of the Native Affairs Branch and the Welfare Branch who gave evidence in this trial was exceptionally high.  Many of them were highly educated and many subsequently achieved high postings in Government in later life.  Their achievements are noted later in these reasons.  My reason for mentioning this factor is to identify them as people of intelligence and experience who might be expected to have knowledge and awareness of the policies that existed in relation to Aboriginal and part Aboriginal people and the manner in which those policies were implemented.  As the summaries of their evidence will reveal, all of them denied the existence of a general or widespread policy of removal of part Aboriginal children and most of them insisted that no child was removed without the consent of the mother of that child.

29                  Witnesses whose evidence related to Mrs Cubillo or the Retta Dixon Home included the Reverend Egerton Long who was the Director of the Aborigines Inland Mission from November 1953 to December 1972.  In that capacity he visited Darwin and the Retta Dixon Home from his base in Sydney from time to time.  Sister Jean Johnson and Mrs Chrissy Treloar (nee South) had both, at different times, been carers for the children at the Retta Dixon Home.  Mrs Marjorie Harris had been, at one stage, a part Aboriginal missionary at the Retta Dixon Home whilst Mrs Ruby Matthews, another part Aboriginal woman, had been an inmate of the Home.  Mrs Mamie Moy (whose former married name was Merlin) had been a welfare officer working in Darwin in the Welfare Branch of the Northern Territory Administration from 1955 to 1962.  Her work brought her into contact with the Retta Dixon Home.  Long after her association with Darwin ceased, she met and married Mr Frank Moy, who, coincidentally, had been the Director of Native Affairs in Darwin from 1946 to 1953.  To avoid confusion, I will refer to her throughout these reasons as Mrs Moy.

30                  The next witness who must be mentioned was Mr Les Penhall.  Much of his evidence concerned the work of the patrol officers but he played a significant role, as the driver of the truck, when the part Aboriginal children were taken from the Settlement at Phillip Creek.  Finally, there was Mr Des Walter, a former missionary at the Retta Dixon Home and the man who Mrs Cubillo accused of savagely beating her.

31                  I turn now to the second group of witnesses whose evidence was primarily directed towards Peter Gunner and St Mary’s Hostel.  First, there was the man of the same name, Peter Gunner, who accepted that he was Mr Gunner’s father.  Unfortunately, due to age and infirmity, Mrs McLeod’s memory was very confused and I was not able to rely on her evidence, except for the contents of her diaries.  Mr Kitching, like Mrs McLeod, also had a very poor memory of events and his evidence was not as helpful as it might have been.  Mrs Kunoth-Monks is a part Aboriginal woman who has had a very successful life both in western terms as well as in Aboriginal affairs.  She resided in St Mary’s Hostel before Mr Gunner’s time.  She is an example of a former inmate who was placed in the Hostel by her parents so that she might gain a western education.  Sister Eileen Heath is the next witness mentioned; she founded St Mary’s Hostel but left it at the end of 1955 to become a welfare officer in the Northern Territory Administration.  Peter Gunner went to the Hostel in May 1956.  Colin Leslie Steep was born on 7 January 1925; he was seventy-four years of age at the time when he gave his evidence in this trial.  He is an Anglican clergyman, presently following his vocation as an assistant minister in a parish in New South Wales.  Mr Steep said that he joined the Church Army, an organisation within the Anglican Church in 1946, at which point he would have been aged about twenty-one.  He said that he then trained for two years to be an Evangelist, successfully completing his studies and being commissioned as an officer-evangelist in November 1947.  He was thereafter generally known as Captain Steep.  Mr Steep married in December 1953 and his wife joined him in his parochial duties in the New South Wales outback; previously, he had spent most of his time performing mission work throughout Victoria.  His parish duties brought him into reasonably regular contact with part Aboriginal people who were among his parishioners.  His duties, then as a lay minister, included meeting with those people in their homes where he would hold religious services.

32                  Captain Steep believed that his work among his parishioners gave him the opportunity to form good working relations with the part Aboriginal people who, so he said, “were very keen for their children to be educated”.  In November 1955, Captain Steep was offered the opportunity by the head of the Church Army to take up the position of Warden at St Mary’s; the offer included the proposition that his wife assume the role of Matron.  Mrs Steep, who also gave evidence for the Commonwealth, had training in mothercraft and kindergarten teaching.  When they arrived at St Mary’s in January 1956 she had one little girl and a second was born not long after.  Two more girls followed in 1958 and 1959.  As Matron, Mrs Steep had a supervisory role over other members of the staff as well as looking after the girls in the dormitories.  The Steeps resigned their positions in St Mary’s in 1959.

33                  Captain Steep was succeeded as Warden by Mr Harold Bennier.  Mr Bennier is dead, but his wife, Laurel gave evidence on behalf of the Commonwealth.  The Benniers were only at St Mary’s Hostel for about eighteen months.  They arrived shortly after the Steeps left in November 1959 and resigned in May 1961.  Mr William Wilson was a school teacher at the Hartley Street school in Alice Springs in 1957 and 1958.  Although he had no recollection of Peter Gunner, Mr Wilson taught at the school at a time when Mr Gunner would have attended as a student.

34                  Mr Leslie Wilson was, at the time of Mr Gunner’s removal from Utopia, the Superintendent of the Bungalow Settlement in Alice Springs.  The Bungalow was a Settlement for Aboriginal people who were visiting Alice Springs for a variety of reasons.  There was evidence in the trial that Peter was taken to the Bungalow from Utopia before going to St Mary’s.  Mr Les Wilson had spent some thirty years with the Native Affairs Branch, first as a stockman at Haasts Bluff and later as a Superintendent of Native Settlements at various places, including Haasts Bluff, Yuendumu, the Bungalow at Alice Springs, and Bagot Reserve at Darwin.  As I have already indicated, Mr Kevin Constable gave evidence in which he denied the allegations of sexual impropriety.  His wife, who had also worked at St Mary’s, gave evidence too.  Next, the Commonwealth called Mr Geoffrey Kelly.  Mr Kelly is a private investigator whose firm had been engaged by the Commonwealth to locate potential witnesses for the trial.  He and members of his staff, including a Miss Kathy Chase, investigated the applicants’ claims and interviewed witnesses and potential witnesses.  Mr Kelly was called to give evidence about the circumstances surrounding his interviews with Mrs Dora McLeod and his involvement in the preparation of an affidavit that she swore for the purposes of these proceedings – as I do not intend to rely on the contents of Mrs McLeod’s affidavit or her oral evidence, I do not find it necessary to examine Mr Kelly’s evidence.

35                  The remaining witnesses fell into the third group to which I have referred.  First of all, there were three former patrol officers:  Mr Creed Lovegrove, Mr Jeremy Long and Mr Colin MacLeod.

36                  Mr Creed Lovegrove was seventy-two years of age when he gave evidence on behalf of the Commonwealth in this trial.  Even though he did not know either Mrs Cubillo or Mr Gunner as children, it was his work as a patrol officer in the 1950s that was of interest and his evidence on that subject was of assistance to the Court.  After completing his secondary schooling at a boarding college in Adelaide, Mr Lovegrove returned to the Territory and obtained clerical employment and then work as a chainman on a survey gang with the Northern Territory Administration.  Whilst engaging in survey work, he met Mr EC (Ted) Evans, then a patrol officer with the Native Affairs Branch, and a lifelong friendship followed.  Mr Evans, who let the young Mr Lovegrove accompany him on short, weekend patrols over a period of twelve to eighteen months, was responsible for Mr Lovegrove ultimately becoming a cadet patrol officer in 1951.  Mr Lovegrove’s first patrol was under the tutelage of Mr Evans; they spent about three months in the Victoria River district.  Thereafter, he worked alone as a patrol officer or as the officer in charge of an Aboriginal Settlement in and about the Darwin area until he was posted to the Alice Springs Branch in mid 1953.  Other patrol officers who were based at Alice Springs while Mr Lovegrove was there included Harry Kitching, Billy McCoy, Brian Greenfield and George Holden.  Ted Evans was then the District Superintendent at Alice Springs.

37                  Mr Lovegrove was stationed at Alice Springs for about two years.  During that time, most of his patrols were to the west of the Stuart Highway.  As a result, he never visited Utopia Station, although he did subsequently visit it in the late 1960s and again in the late 1970s.  In 1955, Mr Lovegrove was posted to Elliott as a patrol officer; he took over from Les Penhall.  From that base, his duties required him to carry out inspections of the cattle stations on the Barkly Tablelands and in the Borroloola area.  While he was stationed at Elliott, Mr Lovegrove, along with other patrol officers in other locations, had to carry out a census of full blood Aboriginals so that a Register of wards could be compiled to comply with the requirements of the new Welfare Ordinance 1953 (NT).

38                  After his posting at Elliott, Mr Lovegrove was appointed, in 1957, Superintendent of the Bagot Native Settlement in Darwin.  Whilst at Bagot, he got to know some of the staff at Retta Dixon, including Miss Shankelton, but it is clear from his evidence that his contact was not, in any sense, official or formal.  As he described it, the contact was “neighbourly”.  By this time, Lorna Nelson had already left the Retta Dixon Home.  After Bagot, Mr Lovegrove was appointed, in 1958, Superintendent of the newly established Warrabri Settlement (now called Ali Curung).  Mr Lovegrove described Warrabri as “the first big full-blood settlement” to cope with the new policy of assimilation, the policy which he described as “the policy of providing a full education for Aboriginal children and training for older people”.  In describing it, Mr Lovegrove talked of “a whole new settlement.  [Y]ou know, buildings, water supply, schools, hospital – all that sort of thing”.  Mr Lovegrove said that the Settlement was about 100 miles south of Tennant Creek and on the eastern side of the Stuart Highway.  It was peopled by members of the Warumungu and the Warlpiri who had previously been located at Phillip Creek.  These events, of which he was talking, would have occurred some eleven years after the removal of Lorna Nelson and the other part Aboriginal children from Phillip Creek.  According to Mr Lovegrove, he estimated that there would have been about 500 Aborigines at Warrabri and a white population of twenty to thirty people.

39                  After his time as Superintendent at Warrabri, and another year as Superintendent at Bagot, Mr Lovegrove was appointed the Acting District Welfare Officer in Darwin.  This was sometime in 1961.  Mr Lovegrove was uncertain whether his duties at that time included the Retta Dixon Home.  His uncertainty was caused because, as he said, changes were occurring in 1961:  the Welfare Branch was being reorganised and professional social workers were being employed.  Mr Lovegrove named the welfare officers who worked in Darwin under his supervision at that time.  One of them was Mrs Mamie Merlin, who I have earlier identified as Mrs Moy.  From 1963 to 1968 Mr Lovegrove was the District Welfare Officer at Alice Springs.  Whilst he was there, Sister Eileen and Mrs Ballagh worked as welfare officers under his supervision; he was then promoted to Assistant Director, Southern Division and in 1971 became the Chief Welfare Officer in Darwin.  At that level, his duties included responsibility for patrol officers, including their training, and liaising with other administrative departments.  From 1973 to 1977 he was Director of Aboriginal Affairs for the Northern Territory and, as such, a member of the Northern Territory Legislative Council and the Administrator’s Council.  In 1977 he accepted a secondment to the Northern Territory Government and took up the office of Deputy Director-General of the Department of the Chief Minister, a position that he held until 1982.  There then followed appointments as Secretary of the Northern Territory Department of Mines and Energy and Chairman of the Committee for the Constitutional Development of the Northern Territory.  Mr Lovegrove was awarded an MBE for his work in the Advancement of Aboriginal Welfare.

40                  In the course of describing the duties of a patrol officer, Mr Lovegrove made the comment that the officers often faced a “hostile environment”.  The patrol officers had to inspect the cattle stations; this meant checking that correct wages were paid to the Aboriginal employees, checking that proper facilities were provided for them, checking that the stations were making correct claims for subsidised payments and generally acting in a manner that some pastoralists regarded as intrusive.  As Mr Lovegrove said:

“We were often referred to in the pastoral areas as brolgas, which meant native companions.”

He went on to explain that it was meant as a derogatory remark but he added “most patrol officers wore that brand with a great deal of pride actually”.  I have taken time to recount this passage in Mr Lovegrove’s evidence because it typifies the man.  As he gave his evidence and as I had the chance to listen to him and observe him, I came to realise that I was listening to a man who had dedicated the greater part of his working life to the betterment of the Aboriginal people.  I am happy to accept his evidence, without qualification, as his personal experience, understanding and perception on matters of both policy and practice.

41                  Mr Lovegrove said that he has had a close association with Aboriginal people virtually since his birth.  His father had been a policeman in the Territory and, because of that, Mr Lovegrove and grown up with the Aboriginal trackers; he also gave instances of his friendships, as a young boy, with Aboriginal children.  He understood the love and affection that Aboriginal people gave to their children and he knew that, through the kinship system, that love and affection extended to uncles, aunts and grandparents.  He also knew of the importance of land to Aboriginal people and he knew of the distress and emotion that had been caused by the removal of part Aboriginal children from their mothers.  It was his evidence that he never, as a patrol officer, took a child away; he had only read accounts of children’s removals.

42                  Mr Jeremy Long was born in 1932 and was aged sixty-seven at the time when he gave his evidence.  He was educated at the University of Sydney where he obtained a Bachelor of Arts with honours majoring in history.  As part of his course, he completed two years of study in anthropology.  In January 1955, he commenced work, under Mr Giese, as a graduate clerk in the Welfare Branch of the Northern Territory Administration in Darwin.  At that time, Mr Milliken was the Assistant Director of Welfare.  Later in 1955, Mr Long became a cadet patrol officer; he was posted to Alice Springs where he initially worked under the supervision of patrol officer George Holden.  In 1956, he attended and completed the twelve month course at the Australian School of Pacific Administration, returning to Alice Springs to continue working as a cadet patrol officer.  At that time, Sister Eileen and Mrs Ballagh were welfare officers, working out of the Alice Springs office.

43                  Mr Long was promoted to patrol officer and later, in 1958, he was appointed Superintendent of the Haasts Bluff Settlement.  After a period in Canberra as a ministerial private secretary, Mr Long returned to Darwin in 1960 where he was engaged in work as a research officer in the Welfare Branch.  His particular task was to examine the “social situation of Aboriginal people”.  Mr Long continued his research work until 1968 when he was transferred to the Department of the Interior in Canberra.  In that intervening period he visited remote Aboriginal communities, studying the demographic situation and making predictions about population growth and the needs of the communities.  In 1966, he, together with Mr Ted Evans, received from the Royal Geographical Society in London, the Mrs Patrick Ness Award for investigations among Aboriginals living in remote desert areas of Central Australia.  Based on his research, he published articles in journals on aspects of the social and cultural changes among Aboriginal communities, but the main outcome of his research was a book that he published in 1970:  Aboriginal Settlements; a survey of institutional communities in Eastern Australia, Canberra, Australian National University Press, 1970.  Upon the establishment of the Department of Aboriginal Affairs, Mr Long transferred to it in January 1973 as the First Assistant Secretary, Policy.  In 1975 he was promoted within the Department to the position of Deputy Secretary, a position that he held until 1982 when he was appointed a Commissioner for Community Relations with the Human Rights Commission.  Mr Long retired from the Commonwealth Public Service in 1987 and, since then, he has worked as a consultant and author.

44                  Mr Colin MacLeod, who is now a magistrate in Victoria, joined the Northern Territory Administration as a cadet patrol officer in late 1955.  In the following year he completed the twelve month course for patrol officers at the Australian School of Pacific Administration.  In due course he was promoted to patrol officer and ultimately left the Administration in early 1959.  It was during his last year as a patrol officer that he commenced his studies in law by correspondence.

45                  Then there were four former officers of either the Native Affairs Branch or the Welfare Branch.  They were Mr Ted Milliken, Mr Ray Vincent, Mr Harold (“Martin”) Ford and Mr Fred Gubbins.

46                  Mr Edwin Percival (Ted) Milliken, who was aged eighty-one when he gave his evidence, still carries on practice as a clinical psychologist at Parap in Darwin.  Whilst serving in the Navy during the Second World War, he completed his tertiary studies, obtaining from the University of Queensland Bachelor degrees in Commerce and Arts, majoring in psychology.  He served out his time in the Navy as a psychologist.  Upon his discharge from the armed services, Mr Milliken obtained employment in the Commonwealth Public Service.  He was first posted to Brisbane and then to Adelaide.  In October 1955, while still in Adelaide, he applied for and obtained the newly created position of Assistant Director of Welfare in the Northern Territory Administration.  Mr Giese was then the Director of Native Affairs.  Mr Milliken commenced his duties with a three week orientation course at Alice Springs before going to Darwin.  Personnel in the Alice Springs office at that time included Arch Richards, the District Welfare Officer, and patrol officers Harry Kitching, George Holden and Billy McCoy.  Mr McCoy later replaced Mr Richards as the District Welfare Officer at Alice Springs in early 1956.  Jeremy Long and Colin MacLeod were patrol officers in Darwin and Creed Lovegrove was acting as Superintendent of the Bagot Settlement when Mr Milliken arrived in Darwin.  According to Mr Milliken, the Welfare Branch recruited Mr Babe Damaso and Mrs Moy as welfare officers for Darwin in 1955 and Sister Eileen and Mrs Ballagh as welfare officers for Alice Springs in 1956.  At that time, there were also four District Welfare Officers:  one each at Darwin, Katherine, Tennant Creek and Alice Springs.

47                  As the Assistant Director, Mr Milliken was second in line to Mr Giese and took over as the Acting Director when Mr Giese was absent from his office.  Mr Milliken stayed in the Administration until 1973 when he left to join the institution which was then known as the Community College and which is now the Northern Territory University; he took up the position of head of the Department of Humanities and Social Sciences and was the senior lecturer in Psychology.  He ceased his teaching career in 1984 and has, since then, limited himself to his private practice as a clinical psychologist.  When Mr Milliken took up his appointment as the Assistant Director of Welfare in Darwin in 1955, the Welfare Branch was accommodated in a Sydney Williams hut which, as he said had:

“no lights, no electricity, fans or anything, but it did have ventilation because the walls didn’t come down to the floor.  And also there was no ceiling, so where the eaves actually went out of the top of the walls, you had – you were able to get air circulating through it.”

48                  Mr Milliken said that ten staff were accommodated in a hut measuring twenty feet by eighty feet.  It need hardly be said that such conditions would not be tolerated today but that was indicative of the standards that people in Darwin experienced ten years after the end of the Second World War.  In considering the quality of the premises and facilities at the Retta Dixon Home and at St Mary’s during the time that Mrs Cubillo and Mr Gunner were there, it will be necessary to bear in mind that their quality must be evaluated against the standards that were operating at the time.  Mr Milliken spoke very highly of Mr Giese; he said of him:

“… I would think that I have not in my life met a more committed or dedicated man to his job.”

49                  Mr Ivan Leonard (Ray) Vincent, a qualified social worker, was eighty-seven years of age when he gave evidence.  He had occupied the position of Administrative Officer General Welfare in the Welfare Branch from September 1958 to December 1961.  By the time of his arrival, Lorna Nelson had already left the Retta Dixon Home and Peter Gunner had already moved into St Mary’s.  Mr Vincent had no recollection of either of them.

50                  Mr Martin Ford, who was the Director of the Department of Aboriginal Affairs at the time of his retirement, was aged seventy-eight when he gave evidence in these proceedings on behalf of the Commonwealth.  In June 1940, at the age of nineteen, Mr Ford obtained a position with the Northern Territory Administration in Darwin as an assistant stores clerk in the accounts branch.  After four years service in the Army, he returned to that position in 1946.  In May 1954, he joined the Native Affairs Branch as the acting chief clerk.  In September 1954, with the pending establishment of the Welfare Branch, his title was changed to acting administrative officer; this did not, however, involve a change in any of his duties.  His position was made permanent in 1956.  He progressed to become the assistant Director of Welfare Services and, thereafter, the Director of Executive Services in the Welfare Division.  In 1972, the Welfare Branch was abolished and the Department of Aboriginal Affairs was created.  Initially, Mr Ford was an assistant Director, then the acting Director, and finally the Director of the Department.

51                  Mr Frederick Andrew Gubbins and Mr Les Penhall were brothers-in-law; they had married sisters.  Unlike Mr Penhall, and through no fault of his own, Mr Gubbins was not able to give assistance to the Court.  He had served in the Native Affairs Branch, first, as a patrol officer in Darwin and later in Alice Springs from 1942 to 1948, leaving the Territory at the age of twenty-five to return to Adelaide with his wife and family.  During his time in the Branch, apart for a short period in the Army, his duties were initially clerical; later, however, he had some face-to-face contact with Aboriginal people.  The main part of the work was survey work, looking for sites, or alternative sites, for Native Settlements.  That included looking for an alternative permanent settlement to replace the Phillip Creek Settlement, although none was found during his time.

52                  The Commonwealth called Dr Neville Green, an educational historian, to give expert evidence about the development and availability of educational facilities for Aboriginal and part Aboriginal children in the Northern Territory.  He trained as a teacher obtaining degrees in Arts and Education from the University of Western Australia and a Masters degree in Education from that University in 1987; the substance of his thesis was the impact of government policies on education in an Aboriginal community in the Kimberley between 1912 and 1978.  In 1991, his University admitted him to the Doctor of Philosophy for his thesis that traced the pastoral history and the violent encounters in the North West Kimberley that culminated in the Forest River Massacres of 1926.  In addition to his academic background Dr Green has also had extensive practical experience as a teacher in Aboriginal schools and as a lecturer in Aboriginal history and education at the Edith Cowan University.  The Commonwealth called Dr David Bell; he is a psychiatrist who interviewed both Mrs Cubillo and Mr Gunner at the request of the Commonwealth.  The final witness for the Commonwealth was Ms Elizabeth Lajos.  She was an instructing solicitor for the Commonwealth.  She filed several affidavits containing information about dead and missing people, some of whom might have been potential witnesses in the trial.

Deceased and missing “witnesses”

53                  During the course of the trial, several people were referred to who, if they were still alive, would probably have given evidence in the trial.  The more significant of those people were, in the case of Mrs Cubillo, her grandmother Alice and her adoptive mother Maisie.  Mr Gunner’s mother, Topsy would have been a very important witness for his case.  Turning then to the Commonwealth, they have lost the opportunity of calling numerous former senior public servants as well as some former members of the staff of the Retta Dixon Home.  I set out hereunder brief details of the various individuals.

54                  The Administrators of the Northern Territory who had the potential to be important witnesses in this trial, all of whom are dead, were as follows:

·               Mr CLA Abbott.  He held office from 29 March 1937 to 30 June 1946.  Although his term of office expired before Lorna Cubillo and the other children were removed from the Phillip Creek Settlement, he could have given evidence about the existence and the implementation of any policy concerning part Aboriginal children that existed throughout his term of office;

·               Mr AR Driver.  He held office from 1 July 1946 to 30 June 1951.  He, of course, would have been most important because he was in office at the time of the removal of the Phillip Creek children.  He could have also picked up from Mr Abbott, explaining whether there had been any changes in policy or any changes in the implementation of policy;

·               Mr FJS Wise.  He held office from 1 July 1951 to 30 June 1956.  His term saw out the last part of Mrs Cubillo’s residence at the Retta Dixon Home and the start of Mr Gunner’s stay at St Mary’s.  His recommendations led to Sir Paul Hasluck’s 1952 policy on the removal of part Aboriginal children; and

·               Mr JC Archer.  He held office from 1 July 1956 to 31 March 1961.

55                  Mr EWP Chinnery arrived in Darwin to take up duty as the Director of Native Affairs on 18 April 1939.  At that time, the Native Affairs Branch had not been divorced from the Medical Branch nor had any separate staff been appointed.  On 10 May 1939, the Branch became a separate organisation and, with a new staff, it established headquarters in “Sion House” in Darwin.  Mr Victor George Herbert Carrington was Acting Director of Native Affairs during Mr Chinnery’s term of office.  Commencing on 29 September 1944, Mr Carrington remained as Acting Director until 21 October 1946.  During that time, Mr Chinnery acted as Commonwealth Adviser on Native Affairs.   Mr Vincent John White was also Acting Director of Native Affairs for some period in 1944.  A letter exhibited to the further supplementary affidavit of Ms Lajos dated 27 September 1999 from Mr White as Acting Director to the Administrator was illustrative of that fact. The end of Mr Chinnery’s appointment as Director was gazetted on 28 November 1946 in the Commonwealth of Australia Gazette No 225.  Pursuant to s 4 of the Aboriginals Ordinance 1918-1943,Mr Victor Johnson, Minister of State for the Interior, approved the retirement of Mr Chinnery as Director and appointed Mr Francis Herbert Moy in his stead from 14 November 1946.

56                  Mr FH Moy was the Director of Native Affairs at the time of the removal of the part Aboriginal children from the Settlement at Phillip Creek.  Notwithstanding the extensive evidence in this trial, the question persists:  why were the children removed from Phillip Creek?  Mr Moy might have been able to answer that question or, at the very least, might have been able to provide some information about the circumstances surrounding the removal of the children.  Yet, curiously, neither the applicants nor the respondent could produce a single document in respect of that removal.  The only document before this Court was an article authored by Miss Shankelton about her talking to the mothers prior to the transfer.  That  article appeared in a newsletter called “AIM” that was published by the Aborigines Inland Mission.  Within the period of Mr Moy’s term of office Mr CR Stahl was Acting Director for a short period  from 20 December 1951 to 19 February 1952.

57                  An extract from the Commonwealth of Australia Gazette, No 33 dated 28 May 1953 indicates that the Minister of State for Territories, the Hon Paul Hasluck MP, (as he then was) approved the termination of the appointment of Mr Moy as Director of Native Affairs for the Northern Territory from 21 May 1953 and the appointment of his successor Mr Reginald Kevin McCaffery as Acting Director commencing the following day, 22 May 1953.  Mr McCaffery had earlier been appointed Acting Director for a short period from 17 October 1949 to 30 January 1950 during the absence of Mr Moy on recreation leave.  Mr McCaffery was brought from Alice Springs to Darwin to take over the duties of Mr Moy as Director.  He had joined the Commonwealth Public Service in 1948 as the District Superintendent of Native Affairs at Alice Springs, having previously been a member of the Northern Territory Public Service from January 1935.  He remained Acting Director of Native Affairs until 25 November 1954 when  the Minister of State for Territories approved the termination of his appointment and the new appointment of Mr Harry Giese, effective from 26 November 1954 as Director of Native Affairs.  That notice of termination and appointment appeared in the Commonwealth Gazette, No 70 on 18 November 1954.

58                  During the course of Mr Giese’s term as Director of Native Affairs his office was renamed Director of Welfare when the Native Affairs Branch became the Welfare Branch.  Consequently, Mr Giese became the Director of Welfare.  During Mr Giese’s term as Director, Mr Ted Milliken was Assistant Director Welfare Branch and in Mr Giese’s absence, he was the Acting Director of the Welfare Branch.  Mr Harry Giese was the Director at the time of Mr Gunner’s removal and he remained in that position for the duration of the period relevant to these proceedings.  Accordingly, the Court could have been assisted by his evidence.  A substantial amount of written material that had either been prepared by him or directed to him was tendered in evidence.  That material, helpful though it was, was no substitute for Mr Giese’s oral evidence.  Mr Giese is still alive but because of his poor state of health he could not give evidence.  Messrs. Chinnery, Carrington, White, Moy, Stahl and McCaffery are all dead.  Within the context of these proceedings, the evidence has not suggested that either Messrs Carrington, White or Stahl would have been witnesses of critical importance.  The same cannot be said of the others.  Mr Moy and Mr Giese would have been most important – undoubtedly, the most important witnesses for the Commonwealth; and there was the potential for Mr Chinnery to have assisted the Court by explaining his understanding of matters of policy and its implementation with respect to part Aboriginal children when he handed over his directorship to Mr Moy less than twelve months before the removal of the Phillip Creek children.  The documentary evidence revealed that Mr McCaffery was very concerned about various matters at the Retta Dixon Home.  His evidence would have probably been very relevant.

59                  The applicants accepted that Mr Giese was potentially a very significant witness; they also accepted that he was too ill to give evidence in November 1999 as the case for the Commonwealth drew to an end.  Their complaint was that the Commonwealth could have and should have called him as a witness in August 1988 at about the time that Sister Eileen and Mr Kitching gave their evidence.  That, I find, was an odd submission, considering that the applicants opposed the Commonwealth’s application to have the evidence of elderly witnesses taken before the commencement of the trial.  Admittedly, the Commonwealth offered no explanation for not calling Mr Giese in 1998 as they had originally planned to do.  However, I propose to make my assessment of the situation based upon the events of the trial and the circumstances that existed at the time of the trial.  Upon that basis, Mr Giese, a person who had the potential to be a most important witness, was unable to attend Court and give his evidence.  It is reasonable to assume that if these proceedings had been brought earlier, the chances of Mr Giese’s availability would have been substantially increased.

60                  Prior to her marriage, Mrs Ballagh was known as Ms Rene Archer.  She was a welfare officer employed in the Alice Springs office of the Welfare Branch between 1956 and 1963.  In that capacity she made several inspections of St Mary’s Hostel and compiled her reports based on those inspections.  They were consistently and harshly critical of the conditions at St Mary’s.  She died on 26 July 1985.

61                  The District Welfare Officers or the Acting District Welfare Officers who were stationed at Alice Springs during the period when Peter Gunner was a resident at St Mary’s Hostel are now all dead.  Mr AE Richards was the District Welfare Officer in 1956 when Peter left Utopia and went to St Mary’s; Mr McCoy was the Acting District Welfare Officer from May until July of that year.  Mr McCoy took over from Mr Richards in August 1957 and held the position of District Welfare Officer until 1962, although Mr JD Gallagher was the acting District Welfare Officer from August until December 1957.  In 1963 Mr G Holden was appointed acting District Welfare Officer and was still in that position when Peter left St Mary’s.  Each of those persons had the potential to give important evidence to the Court about how the Native Affairs Branch and, later the Welfare Branch, administered matters of policy.  In particular, what might they have said about the many accusations that have been made by Mr Gunner?  Their deaths have robbed the Commonwealth of investigating what they might have been able to say.

62                  Miss Amelia Shankelton played a most important part in the life of Mrs Cubillo.  She was directly involved in taking Lorna Nelson Napanangka from the Phillip Creek Native Settlement to the Retta Dixon Home at Darwin and she was the Superintendent of the Home throughout the whole of the period that Lorna was a resident.  She was known to the children as “Lailee”.  She died on 15 June 1990.  Ms Spohn was a missionary at the Retta Dixon Home while Mrs Cubillo was living there.  She was known to the children as “Auntie Marj”.  She died on 19 May 1982.  Ms Dinham was, with Ms Spohn, another missionary at the Retta Dixon Home, at the time when Mrs Cubillo was there.  The children called her “Mummy Dinham”.  She also is dead.  Her date of death was 31 July 1983.

63                  Sister Eileen was the first Superintendent of St Mary’s Hostel.  However, within a short time, that was changed and Father Percy McD Smith, the resident Anglican priest in Alice Springs, took over the position.  Sister Eileen was thereafter referred to as the Matron.  He was Superintendent from 17 April 1950 to February 1955.  He died on 7 May 1982.  Archdeacon WF Rogers was the next appointed.  He resigned as Superintendent of St Mary’s Hostel on 24 November 1958 and died in the United Kingdom in October 1980.  He was replaced by Archdeacon AH Bott who took up his appointment on 3 March 1959.  In the intervening period, Captain Steep acted as Superintendent.  When Mr and Mrs Bennier resigned in May 1961, Archdeacon Bott and his wife took up residence within the grounds of St Mary’s and Archdeacon Bott took over the additional role of Warden; he continued in both positions until 1966, by which time Mr Gunner had left St Mary’s.  Archdeacon Bott died on 25 July 1992.

Bringing Them Home

64                  As children, most – one would like to think all – of us enjoyed the love that a child has for his or her parents, but no child can begin to comprehend the love that a parent has for a child until that child becomes a parent.  To be separated forcibly from a parent or from a child could only be described as a heart breaking experience.  Even in those circumstances where a parent parts with a child voluntarily, the parting is most often a cause for deep anguish.  The loss might be softened in those cases where the parent can visit the child or the child can return home periodically.  However, where the parting is total – when a mother does not know where her child has been taken – when the child does not know how to make his or her way home – the loss is total as is the grief.  For most of us, it would be presumptuous to say that we could understand that grief – one would have to experience it to understand its enormity, yet this is what is said to have happened to thousands of part Aboriginal children and their mothers throughout most of Australia for many, many years.  No matter the legal consequences, no matter the motives or the intentions or the policies that led to these separations – whether they be good or bad – one must have feelings of great regret for those who have so suffered.  The law has always recognised the strength of the bond between mother and child.  The High Court in Mace v Murray (1955) 92 CLR 370 at 385, an adoption case, stated its views on the rights of the natural mother very strongly.  In their joint judgment, their Honours emphasised, on the one hand, the intensely strong emotional bond that exists between mother and child whilst, on the other hand, recognising that there can be circumstances where that bond may not exist or may, even though it does exist, have to give way to other considerations.  Their Honours said at 385:

“It must be conceded at once that in the ordinary case the mother’s moral right to insist that her child shall remain her child is too deeply grounded in human feeling to be set aside by reason only of an opinion formed by other people that a change of relationship is likely to turn out for the greater benefit of the child.  It is apparent, too, that a court which is invited to make an order of adoption must appreciate that the child is another’s, and that only the most weighty and convincing reasons can justify the involuntary breaking of a tie at once so delicate and so strong as the tie between parent and child.  But these considerations cannot carry such overwhelming weight where the mother, with pre-meditation and full knowledge of what she is about, has excluded the child from her life from the moment of its birth.  In such a case, and especially where others have taken the mother’s place both materially and emotionally during the period of her renunciation of him, her proved unfitness to be a mother to the child is clearly relevant to the question whether it is just and reasonable for the court to substitute those others for her in the parental status despite a new-found desire on her part to retrace her steps.”

65                  The former practice of separating part Aboriginal children from their mothers has attracted Australia-wide publicity, particularly as a result of the tabling in the Commonwealth Parliament on 26 May 1997 of the report of the Human Rights and Equal Opportunity Commission (“the Commission”) entitled “Bringing them home”.  Earlier, on 2 August 1995, the Commonwealth Attorney-General of the day had requested the Commission to inquire into and report on certain matters.  The first matter required the Commission to:

“(a)     trace the past laws, practices and policies which resulted in the separation of Aboriginal and Torres Strait Islander children from their families by compulsion, duress or undue influence, and the effects of those laws, practices and policies.”

The Attorney’s terms of reference also addressed the subject of compensation.  The Commission was requested to:

“(c)     examine the principles relevant to determining the justification for compensation for persons or communities affected by such separations.”

However, the Commission’s terms of reference did not call for any inquiry into separations that were effected with the consent of a child’s family:  nor did they require a consideration of cases where a neglected, destitute, sick or orphaned child might have been removed without the consent of the child’s parents or guardian.

66                  Sir Ronald Wilson, the President of the Commission, presented his Commission’s report under cover of his letter of 5 April 1997.  It has since led to strenuous demands, from a wide cross-section of the community, that the Commonwealth Government issue a public apology to all those who were caught up in this program of enforced institutionalisation.

67                  It might be that there are readers of this judgment who are not legal practitioners.  Should that be the case they may wonder why I have not, in these reasons, made detailed reference to the contents of the Commission’s report.  The short answer is that the report was not referred to during this trial by any counsel; it was not tendered in evidence and a Court of Law is bound to decide the case that is before it upon the evidence – and only upon the evidence – that is placed before it by one or other of the parties to the litigation.  But, lest it be thought that I am unaware of the contents of the report I should make it clear that I have read substantial sections of it – particularly, those sections that dealt with the Northern Territory and the residents of the Northern Territory.  I note that much of the information concerning the histories of those Northern Territory residents who informed the Commission that they had been forcibly removed and detained in the institutions against their will and the will of their parents (eg those whose details are recorded at pp 155, 159, 172, 264 and 406) related to events that preceded the Second World War and, because of their ages, the circumstances of their institutionalisation would have been of minimal value in these proceedings.

68                  A Full Court of this Court recently addressed a similar problem of public perception in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 626.  That case, like the present case, attracted much public interest and the members of the Court (Wilcox, von Doussa and Finkelstein JJ) considered that it would be helpful to explain the lines of demarcation between matters that may be known to a judge personally and matters that are before a judge formally as part of the evidence in a trial.  What their Honours said in their joint remarks led me to feel that I should explain why the Commission’s report has not been considered in these reasons.  Their Honours observed at 628-629:

“Before dealing with the case as presented, it is perhaps useful for us to say a word on what the case is not about.  We do so because many commentators on the decision of North J appear to have laboured under a misconception of the role of a court in a situation like this.

As individuals, each member of the bench, like all sensible Australians, is in favour of an efficient waterfront.  Export income is the economic life blood of our nation.  Most of our exports depart by sea, many through container terminals.  It is obviously important to ensure that the operation of container terminals is as efficient and economical as reasonably possible.  But these are personal views.  We each have personal views, not necessarily identical, about how this might best be achieved.  But the court, as a court, has no view about such matters.  The court does not have the material that would be necessary for it to make a judgment about the efficiency of the Australian waterfront, either in absolute terms or relative to other countries, the causes of such inefficiencies as may exist, or the desirable steps to overcome any perceived problems.  This material has not been placed before the court because the parties have realised, although some commentators have not, that these are not issues for the court’s determination.  The business of the court is legality.  Just as it is not unknown in human affairs for a noble objective to be pursued by ignoble means, so it sometimes happens that desirable ends are pursued by unlawful means.  If one point is taken before them, courts have to rule on the legality of the means, whatever view individual judges may have about the desirability of the end.  This is one aspect of the rule of law, a societal value that is at the heart of our system of government.  It follows that this judgment should be seen only as a judgment about legal issues, not a view about the social, economic and political arguments concerning waterfront management that have dominated the media during the last couple of weeks.”

69                  This trial is therefore limited to the personal histories of Lorna Cubillo and Peter Gunner and the policies and the implementation of the policies of the Commonwealth to the extent to which they concerned part Aboriginal people in the Northern Territory of Australia between 1947 and 1963 or thereabouts and affected the applicants in these proceedings.

70                  In Kruger v The Commonwealth of Australia (1997) 190 CLR 1 (“Kruger”) the High Court held that the legislation that allowed for the institutionalisation of part Aboriginal children was constitutionally valid.  That did not prevent Brennan CJ from saying at 36 that the revelation of the ways in which the powers conferred by the legislation were exercised had, in many cases, “profoundly distressed the nation”.  At a later time, when writing extra-judicially in “Reconciliation” (1999) 2 The University of New South Wales Law Journal 595 at 597, his Honour said of Kruger:

“The policy of compulsorily separating some Aboriginal children from their parents was revealed in terrible particularity in the Report of a Commission of Inquiry.”

71                  He then added that whilst the High Court “acknowledged this awful truth” in Kruger, it was “unable to hold that the measures under which the separations had been carried out were invalid”.  Dawson J was equally critical in Kruger.  He said that:

“No doubt it may be said with justification that the events in question did not promote the welfare of Aboriginals.”

72                  The Full Court of the Family Court In the Marriage of B and R (1994-1995) 19 Fam LR 594 at 602 per Fogarty, Kay and O’Ryan JJ was more direct in its outright condemnation of the practice; it said:

“The first step in the admissibility of this type of evidence is, we think, now beyond controversy.  This is the devastating long term effect on thousands of Aboriginal children arising from their removal from their Aboriginal family and their subsequent upbringing within a white environment.”

73                  The applicants in this case do not challenge the decision in Kruger.  They do not claim that the statutory powers in the legislation under which they were removed and detained were invalid.  Their claim, in effect, is that the authorities were bound to exercise those powers in the best interests of the child and that, in breach of that requirement, they failed to do so.

74                  It would not be proper for me, as a judge of this Court, to express a personal view about the call for a national apology.  I have a view on the subject as, no doubt, most Australians have.  However, my view is only that of another member of the community; it may or may not be a view that is shared by other judges of this Court and the Federal Court, which as a collegiate body, deliberately refrains from expressing a view on social, moral or political issues unless, of course, they are identified as subjects for judicial consideration.  The question of an apology to the members of the Stolen Generation was not an issue that arose in this case.  That factor is sufficient to restrain me from stating a view on the issue. I merely record what has happened to date in the Parliaments of the States and Territories.  The South Australian Parliament passed a resolution of sincere regret and apology, referring to “the forced separation of some Aboriginal children from their families and homes”.  (SA, Parliamentary Debates, House of Assembly, 28 May 1997, pp 1435-1443).  Queensland also incorporated the concept of “force” in that its resolution of regret and apology referred to “past policies under which indigenous children were forcibly separated from their families”.  (Qld, Parliamentary Debates, Legislative Assembly, 26 May 1999, pp 1947-1982).

75                  The Parliaments of Victoria, New South Wales, Western Australian and Tasmania have also passed resolutions of regret and apology but in terms that have not referred to “force”.  For example the Victorian resolution was in these terms:

“That this house apologises to the Aboriginal people on behalf of all Victorians for the past policies under which Aboriginal children were removed from their families and expresses deep regret at the hurt and distress this has caused and reaffirms its support for reconciliation between all Australians.”  (Victoria, Parliamentary Debates, Legislative Assembly, 17 September 1997, p 10).

The Assembly of the Australian Capital Territory passed a resolution of apology saying that it regarded “the past practices of forced separation as abhorrent …”.  (ACT, Parliamentary Debates, Legislative Assembly, 17 June 1997, p 1604).

76                  In the Northern Territory of Australia, the Opposition Leader tabled a motion of apology and regret.  The Chief Minister of the day is recorded as saying:  “It is not our intention to vote against the motion proposed by the opposition, but rather to amend it”.  The amendment was substantial and lengthy; it addressed the Territory’s past and ongoing support for Aboriginal people but it did not contain any statement of regret nor did it contain an apology.  The last part of the resolution affirmed:

“… that positive and material support for the victims and their families is more beneficial than the empty-apology option taken by a number of parliaments in the Australian States.” (NT, Parliamentary Record, Legislative Assembly, 17 February 1998, p 14).

 

77                  The position with respect to the Commonwealth Parliament, requires special mention.  At common law anything said or done in the House is protected by absolute privilege – a privilege that can be traced back to Article 9 of the Bill of Rights 1688.  In Australia, the privilege of the Houses of the Commonwealth Parliament derives from s 49 of The Constitution and the privilege has been declared for the Commonwealth Parliament by the Parliamentary Privileges Act 1987 (Cth).  Section 16 of that Act, which substantially prohibits the raising in a court of anything done or said in the Commonwealth Parliament, is in the following terms:

“(1)     For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

          ….

(3)     In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a)       questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b)       otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c)        drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

            …”

78                  By virtue of this prohibition I do not think that I should refer to Hansard to record what has been said in the House on this subject.  However, it is a matter of public record, ascertainable from sources other than Hansard, that the Commonwealth Parliament passed a motion of sincere regret on 26 August 1999; the motion did not however include an apology.

79                  For many people it is, at least, a matter of regret that, expressed in its most favourable terms, our ancestors might have misguidedly thought that it would be beneficial to the interests of part Aboriginal children to separate them from their families and to remove them into institutions.  That, of course, is a matter of social conscience; it still remains to be seen whether that translates into a legal cause of action.  Legal disputes must be decided in accordance with the law.  Merkel J made this point in his dissenting judgment in the Full Court of this Court in Nulyarimma v Thompson (1999) 165 ALR 621 at 638-639.  His Honour, when discussing the claims that had been pursued by the Aboriginal applicants in that case, said:

“In each matter the applicants are seeking to remedy wrongs of the past committed against the Aboriginal people.  In some instances litigants, even where assisted or represented by legal advisers, have unrealisable expectations of the capacity of the law to remedy past wrongs.  However, the Court’s role is to hear and determine, in accordance with law, controversies arising between parties.  It is not within the Court’s power, nor is it its function or role, to set right all of the wrongs of the past or to chart a just political and social course for the future.” 

Later in his judgment, Merkel J said:

“The role of the Court is to adjudicate upon those claims in accordance with law.  In doing so the Court is to determine, in accordance with its judicial function, what the law is rather than what the law should be.  The latter function is that of the legislature.”

Those comments, which I respectfully adopt, are very appropriate to the circumstances of the claims that have been made by Mrs Cubillo and Mr Gunner.  The task of the Court is to examine the evidence – both oral and documentary – in a clinical manner, devoid of emotion, for the purpose of ascertaining, first, whether the applicants have causes of action against the Commonwealth; secondly, whether, if they do, they should be permitted to prosecute them, having regard to their delay in the institution of proceedings; and thirdly, if they are permitted to prosecute them, whether they have made out their claims.

80                  I have taken time to mention the “Bringing Them Home” report and the resolutions of the Parliaments of the States and Territories – not because they were the subject of evidence or submissions in these long trials – but so that members of the general public may appreciate that the Court has, at all times, been aware of these matters.  Much evidence was received about the policy or policies that the Governments of the day had implemented with respect to matters pertaining to Aboriginal Affairs and there will be a need to address aspects of those policies when considering the personal circumstances of Mrs Cubillo and those of Mr Gunner.  However, the dominating issue has, at all times, centred upon the individual.  Matters of policy have been called in aid, only as adjuncts to a determination of the rights of the individual.  It is for that reason that counsel refrained, correctly in my opinion, from referring to the Commission’s report and the actions of the Parliaments.

81                  In the compilation of these reasons I have found it necessary to incorporate from time to time, the language of the day.  Repeatedly, throughout the trial, items of documentary evidence disclosed the use of words such as “full bloods”, “half-castes” and “coloureds”, to name a few.  Indeed, there were also occasions when one or other of those terms was used during the course of oral evidence – and not only by non Aboriginal people.  Some people find these words offensive and any use of such terms in these reasons has been occasioned only in the interests of accuracy.  The preferred terms that were used in the trial were “Aboriginals” or “Aborigines” to identify indigenous Australians and part Aboriginals to distinguish those of mixed ancestry; I will use those terms where it is appropriate to do so.

Changing Standards

82                  In par 31 of her further amended statement of claim, Mrs Cubillo has alleged that her removal and detention was unlawful and beyond the relevant legislative powers.  She had advanced, as a ground in support of that allegation, the claim that her removal and detention occurred:

“… under the dictate of or pursuant to a general policy of removal and detention of half-caste children from their Aboriginal parents and without regard for the individual circumstances of the Applicant.”

Her pleading in that paragraph continued with the further claim that in applying the general policy, as identified by her, the Director of Native Affairs:

“… failed to exercise his discretion properly or at all, in that he failed to consider and determine whether the removal and detention of the Applicant was necessary or desirable in the interests of the Applicant or of her mother.”

83                  Mrs Cubillo further claimed that the Director of Native Affairs took into account irrelevant considerations namely, the general policy, as identified by her – that is, a general policy of removal and detention of half-caste children, irrespective of their particular circumstances – and that he failed to take into account relevant considerations, namely “the interests and particular circumstances of the Applicant”.  She concluded with a plea that the execution of the power to remove and detain her was “so unreasonable that no reasonable person could have so executed that power”.  Claims in identical terms have been made in par 41 of Mr Gunner’s further amended statement of claim.  The allegations that the Director took into account irrelevant considerations and that the Director failed to take into account relevant considerations were withdrawn – but only during the course of final submissions.  The claim of “unreasonability” remained however and was pursued.

84                  In its separate defences the Commonwealth denied that it had, or had implemented, a general policy of the type described in the further amended statements of claim and it also denied that the Director of Native Affairs applied or acted pursuant to any such policy.  But the Commonwealth also added a further plea in each defence that has raised an issue of importance.  In subpar 31(c) of its defence to Mrs Cubillo’s claim, the Commonwealth has claimed:

“… that whether any exercise of the power to remove and detain the applicant by the Director of Native Affairs (which is not admitted) was reasonable, necessary or desirable or took into account irrelevant considerations or failed to take into account relevant considerations must be determined by reference to standards, attitudes, opinions and beliefs prevailing at the time of its exercise and not by reference to contemporary standards, attitudes, opinions and beliefs.”

Comparable pleadings are to be found in pars 41 and 43 of the Commonwealth’s defence to Mr Gunner’s claim.  For reasons that I will endeavour to explain, I am convinced that the Commonwealth was correct in its claim that these actions must be resolved by having regard to the standards, attitudes, opinions and beliefs that prevailed during the period that commenced with the removal of Mrs Cubillo in 1947 and that finished when Mr Gunner left St Mary’s Hostel in Alice Springs in 1963.

85                  It is a truism to say that we live in changing times.  What was accepted yesterday is rejected today.  What would not be tolerated yesterday is accepted today.  There are moral and social issues that have in the past divided, and continue today to divide, sections of the community.  Euthanasia is an example of such an issue.  Once upon a time it was denounced as murder:  there was no room for debate.  Today there is a growing argument to legalise it under strict conditions.  The Parliament of the Northern Territory passed a law permitting it, only to see that law subsequently disallowed by the Federal Parliament.  In 1995 the Northern Territory enacted the Rights of the Terminally Ill Act 1995 (NT).  The Australian Capital Territory had similar legislation, the Medical Treatment (Amendment) Bill 1995 (ACT).  However, the Commonwealth Parliament in 1997 enacted the Euthanasia Laws Act 1997 (Cth) which specifically disallowed the Northern Territory legislation by prohibiting the Legislative Assembly from making laws which permit or have the effect of permitting euthanasia.  The Commonwealth legislation amended the ACT self-government legislation in similar terms.

86                  The same divisive opinions exist about the subject of abortion.  There are those who are so totally opposed to it on religious, moral or social grounds that they regard it as murder.  In all jurisdictions in Australia procuring an unlawful abortion is, prima facie, an offence.  However, each jurisdiction contains provisions for a defence to the charge.  The common law defence of necessity applies in Victoria, New South Wales and the ACT.  In Queensland there is a medical defence as prescribed in the Queensland Criminal Code.  South Australia and the Northern Territory have modified the common law defence: Criminal Law Consolidation Act 1935 (SA) s 82A; Criminal Code (NT) s 174.  In both jurisdictions an abortion is lawful if two doctors are of the view that continuation of the pregnancy is likely to endanger the mother’s health.  In Western Australia an abortion is now not unlawful if done with the informed consent of the mother: Health Act 1911 (WA) s 334.  So it can be said, broadly speaking, that, bit by bit, the earlier prohibitions are being eroded away.

87                  Capital punishment causes divisions in society.  It has been abolished in Australia for many years, but there are those who advocate its return and its use has resurfaced in some States of the USA.  Then there is the subject of killing in times of war.  The laws of our land acknowledge the right of conscientious objectors not to bear arms:  s 61A Defence Act 1903 (Cth).  That, however, did not stop ladies sending the white feather – the mark of the coward.

88                  Tasmania until 1997 was the only Australian State, and one of the few places in the western world, that continued to criminalise sex in private between consenting adult males.  The laws were enshrined in ss 122 and 123 of Tasmania’s Criminal Code (Tas) which banned sexual acts “against the order of nature” and “gross indecency between male persons”.  Whilst other Australian States had repealed the criminal prohibitions on homosexual acts following political lobbying during the 1970s and early 1980s, Tasmania’s Parliament had not.  It remained out of step with the rest of Australia.  Eventually, in December 1990, reform legislation was passed through the Lower House but the Bill was rejected in the Upper House.  That was the first of five attempts to push the reform legislation through the Tasmanian Parliament.  In late 1991, as the second Bill to reform the law was rejected, Australia was finalising its acceptance of the first optional protocol of the International Covenant on Civil and Political Rights issued by the United Nations Human Rights Committee.  Eventually, in 1994, the UNHRC investigated a case in Tasmania and found that Tasmania’s laws violated an individual’s right to adult consensual sexual activity in privacy.  It advocated the repeal of the relevant sections of the Criminal Code.  After some delay the Federal Parliament finally responded to the UNHRC decision, passing the Human Rights (Sexual Conduct) Act 1994 (Cth).  Tasmania regarded that law as having no application because its laws were not “arbitrary”, but following upon a High Court decision that supported the Commonwealth legislation, a Bill to repeal the State’s law was tabled in the Upper House for the fifth time in April 1997.  On 1 May 1997, ss 122 and 123 of the Tasmanian Criminal Code were repealed.

89                  These and other like issues throw up in sharp relief the legitimate divisions of opinion that can exist in our community.  And whilst any one of us is entitled to have a strong conviction and a fierce determination to pursue a particular avenue, it is well to remember what Voltaire once wrote:  “I disagree with what you say but I’ll defend with my life your right to say it”.

90                  Difficult as these problems may be in their resolution, there is yet a further problem for jurists – the need to identify and separate the legal from the social and moral issues.  For example, a father may regard abortion as abhorrent but if the mother of his child, in (say) Western Australia, gives her informed consent to the operation, it is highly unlikely that the grieving father would have a cause of action at law against the hospital or the doctor or those assisting at the operation.  For the same reasons, in the days of capital punishment, the family of the condemned person would have no legal redress against the State or the executioner because the act of execution was authorised by law.  And this view will prevail notwithstanding that there were people then, as there are people now, who were outraged by the act of public execution.

91                  The social stigma of illegitimacy that existed until the last thirty or forty years most often led to unmarried mothers putting their children up for adoption.  Society is now reacting against that practice as it experiences the driving need of so many people to search out their biological parents – in particular their natural mother.  Many elements of society now accept single parenthood in a way that would not have been acceptable some decades ago and, as a result, it is now recognised that the number of children who are put up for adoption has significantly decreased.  This is but another example of a dramatic change in social attitudes.  There was a time when marriage, as an institution of intended permanency, was the hall-mark of society – and with marriage came post-nuptial conception and legitimacy.  Although many times honoured in the breach, that was, nevertheless the standard or the norm.  Today it is quite different; no-fault divorce has been on the Statute books since the enactment of the Family Law Act 1975 (Cth).  Premarital sex and single parenthood are frequent occurrences.  So far as this case is concerned, the issue is not to debate whether those changes are right or wrong or good or bad.  Rather, the matter of importance is to recognise that the thinking of many people today is grossly at variance with the thinking of their parents and grandparents.  Today, there would be many who would condemn parents who forced their unmarried teenage daughter to give up her baby for adoption or face family ostracism.  But would that condemnation have been so apparent fifty years ago?

92                  The subject of assimilation has loomed large in these proceedings.  Assimilation was, in the 1940s, the 1950s and the 1960s, as it is now, a social and political issue.  It is neither morally nor legally wrong of a person or of a Government to advocate or implement a policy that approves of or rejects the concept of assimilation.  In so far as it may be possible to generalise, the most that can be said is that many interested and concerned people in former times favour assimilation but, today, the pendulum has swung back strongly in favour of the retention of Aboriginal tradition and lore.  The changing swings and moods of social thinking have had a great effect on the presentation of the cases for the applicants and in the Commonwealth’s defence.

93                  Dr Green, who has had substantial experience in the development of syllabi for the teaching of Aboriginal (including part Aboriginal) children said that he knew of the development of like programs in the Northern Territory.  He said that many of the programs that he developed were, in fact, based on the programs that had been developed in the Territory; he added that the 1963 report on those developments known as “the Watts / Gallagher report” was “standard reading” and was used “to teach curriculum development to trainee teachers for Aboriginal schools”.  The authors of that report, Mr Jim Gallagher went on to become Director of Education in the Northern Territory and Betty Watts, his colleague, became Professor of Education at the Brisbane University.  The significance of the Watts / Gallagher report was that it made clear that the traditional classroom methods that were used for European students were inappropriate for Aboriginal children. 

94                  However, the matter of interest to the histories of Mrs Cubillo and Mr Gunner was that this professional awareness, despite experiments in the proceeding decade, did not start to surface until the early 1960s.  By that time Mrs Cubillo had finished her schooling and Mr Gunner had almost finished – perhaps had finished – his.  This dramatic shift in the method of education for Aboriginal children is yet another example of the moving standards.  To adapt a phrase that has been used by Professor Helen Haste, we have seen in the last fifty years or so, a huge change in the mapping of our moral and social values towards the Australian Aborigine.  The Watts / Gallagher report is but another example that there was developing, at that time, an understanding by educational authorities that special schools were needed for Aboriginal and part Aboriginal children.  Those facilities were not, however, available during the school days of Mrs Cubillo and Mr Gunner and little purpose is served by them now complaining about the quality of the education that they received; they had access to and received the same education that was available, according to the standards of the day, to all students who were able to attend schools.  What they lack was the special attention that is now given to Aboriginal and part Aboriginal children.

95                  The unsuitability of schools to nurture and foster learning by part Aboriginal children who were brought in from remote areas was referred to in the evidence of both Sister Eileen and Mr Wilson, the teacher at the Hartley Street School.  They both testified to the inadequacies of school programs to assist Aboriginal and part Aboriginal children – particularly those who started school at a later age with little or no English skills.  The need for special provision was also recognised by the Native Affairs Branch.  However, the opinions, both well informed and intelligent, of those such as Sister Eileen and Mr Wilson, and the recognition of the need for special provision by the Native Affairs Branch, did not translate into a duty of care.  Rather, the schooling that was available in the Northern Territory, while limited, was equally available to all children.

96                  The question of community standards was addressed by some of the justices in Kruger.  Brennan CJ, for example said at 36-37:

“… it would be erroneous … to hold that a step taken in purported exercise of a statutory discretionary power was taken unreasonably  … if the unreasonableness appears only from a change in community standards.”

Dawson J said at 52:

“The measures contemplated by the legislation, of which the plaintiffs complain, would appear to have been ill-advised or mistaken, particularly by contemporary standards.”

But his Honour went on to recognise that there had been “a shift in view upon the justice of morality of these measures”.

97                  Toohey J said that the legislative history lent force to the submission “that the Ordinance was seen at the time as serving a welfare purpose”:  at 76 and 85.  His Honour was there referring to the Aboriginals Ordinance 1918 (NT).  He added however that “the means adopted to achieve such a purpose would now be regarded as entirely unacceptable”:  at 76.  Toohey J discussed at length the variations in standards.  He made it quite clear that, even though the Ordinance must be assessed by reference to what was reasonably capable of being seen by the legislature at the time as a rational and relevant means of protecting Aboriginal people against the inroads of European settlement “no such basis would survive analysis today”:  at 97.  While recognising the “welfare purpose” of the legislation, his Honour was of the opinion that “judged by current standards”, the involuntary detention of an Aborigine would now most likely be considered invalid because of the general proposition that “the power to order that a citizen be involuntarily confined in custody is … part of the judicial power of the Commonwealth”:  at 84.  Nevertheless he maintained that it was still relevant “to consider the standards and perceptions prevailing at the time of the Ordinance”:  at 93.

98                  Gummow J was of much the same view.  He accepted that the provisions of the relevant legislation were indicative of a concern by the Executive “to assist survival rather than destruction”.  But he added that the philosophy “now may appear entirely outmoded and unacceptable”:  at 158.

99                  This litigation must investigate whether there was sufficient evidence to explain why Lorna Cubillo and Peter Gunner were placed in institutions and kept there for many years.  For example, was it done with or without the informed consent of their families?  If it was done without consent, was it the action of uncaring people who followed the dictates of some policy that had no regard to the interests of the child?  Or was it the action of people who, although misguided on today’s standards, were well-meaning and acting in a way that they thought was in the best interests of the child?

100               Mr Worthy made a comment during the course of his evidence in chief which, in my opinion, must play a significant part in assessing the applicants’ complaints about the conditions of the institutions when they were inmates.  They complained, among other things, that the staff were lacking in qualifications.  As to this, Mr Worthy explained that at one stage there was a prevailing attitude that “everybody knows how to look after children in the institutions”.  He then went on to explain that there was “a definite shift” so that by the early 1960s “it was considered essential that people who were qualified in the field – that’s social workers, psychologists – be appointed, as indeed they were, to many church and welfare institutions”.  Mr Worthy’s comment was appropriate when one has regard to the staff of the Welfare Branch and to the Native Affairs Branch.  Many of its officers were highly qualified.  But the same could not be said of the staff of St Mary’s Hostel.  That opinion, expressed by a person with both academic and practical qualifications in the field of social welfare, showed how important it is to remember that this case has been concerned with the standards that were in vogue forty to fifty years ago.  The trained personnel that Mr Worthy regarded as essential were being introduced at Government level but the charitable institutions were lagging behind.

101               A similar concern arose in Williams v Minister, Aboriginal Land Rights Act 1983 [No 2] [1999] NSWSC 843 (“Williams v Minister [No 2]”).  The plaintiff in that case, a part Aboriginal woman, had been detained in institutions between 1942 and 1960 at her mother’s request.  She alleged negligence against the respondent having regard to the manner in which she was treated in that time.  The trial judge, Abadee J had this to say at par 757:

“It is appropriate to repeat, that the events that I am being asked to judge and evaluate commenced in 1942 and finished in 1960.  Thus in 1999 I am asked to judge that which took place 39 to 57 years ago (over a half a century)!  I repeat again that these are events that occurred in a different Australia, a society with different knowledge, and with different moral values and standards.  To apply attitudes of the present community to a period commencing so long ago would be to apply the standards of today not those of the 1940s and 1950s.”

102               Earlier Barwick CJ warned of the dangers of hindsight in Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292, when he said at 292-293:

“It is, in my opinion, proper to remark at the outset that the respondent’s duty was to take reasonable care for the safety of his passengers.  It is easy to overlook the all important emphasis upon the word ‘reasonable’ in the statement of the duty.  Perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances.  That matter must be judged in prospect and not in retrospect.  The likelihood of the incapacitating occurrence, the likely extent of the injuries which the occurrence may cause, the nature and extent of the burden of providing a safeguard against the occurrence and the practicability of the specific safeguard which would do so are all indispensable considerations in determining what ought reasonably to be done.  Of all these elements, evidence is essential except to the extent that they or some of them are within the common knowledge of the ordinary man.  The fertile but unqualified imagination of counsel or the judge can never be a substitute for such evidence.”

The fact that standards of care are evolving must be recognised.  As times change, so also may standards, but that does not always mean that some form of instantaneous reaction is required.

103               Thus, in dismissing the appeal by a person who had been seriously injured when he was left unattended in a prison cell in an intoxicated state, Mahoney JA in Cekan v Haines (1990) 21 NSWLR 296 stated at 314:

“…a defendant, whether a government or otherwise, must accommodate what it does to the evolving requirement of a standard of care.  But evolution of this kind does not take place in discrete or quantum leaps.  There are periods, of which the present is, on the evidence, one, during which it will be by no means clear to a careful defendant what the duty of care requires in this regard and this poses problems where, in particular, if the standard of care has changed, what is required to meet the change is a rebuilding of a cell complex or the relevant parts of it.  And it is necessary in such circumstances, to consider whether a government has failed to discharge the obligations imposed by its duty of care because, in a time when change is still occurring, it has not, for example, rebuilt its cell complex against what may be held to be a change in the response of a reasonable man to what is required of it.”

104               Consequently, not only is it relevant to have regard to the state of knowledge, to technology and to standards of conduct and behaviour at the relevant time, but allowance must also be made for changes in those matters to be implemented and generally accepted.  Again, in determining what is reasonable in that regard, matters such as the existence of resources and statutory power to effect change must be taken into account.  In some cases, of course, such changing values may come to be reflected in policy but this can only be done to the extent that it is not inconsistent with the existing statutory regime.  Legislative change may take longer.

105               Although it is important to recognise that the subject of the removal and detention of part Aboriginal children has created racial, social and political problems of great complexity, it nevertheless remains the duty of the Court, in the determination of the issues that are presently before it, to limit its observations to the legal issues that have been identified during the course of argument.  Historians may wish to adjudicate on the racial and social policies of former Governments and it must be left to the political leaders of the day to determine what, if any, action might be taken to arrive at a social or political solution to these problems.  It would not be proper for this Court to go beyond the boundaries of the legal issues that are to be determined.

The Commonwealth – an introduction

106               The Commonwealth has raised several defences but, at this stage, it is sufficient to mention the following.  In the case of Mrs Cubillo, it maintains that it did not remove her from the Phillip Creek Native Settlement; the Commonwealth says that she was removed, either by the Aborigines Inland Mission through the agency of Miss Shankelton, or by Mr Moy, the Director of Native Affairs (for whom it had no responsibility) through the agency of Mr Penhall; the Commonwealth says that it was the Aborigines Inland Mission who thereafter detained her at the Retta Dixon Home.  The Commonwealth claims that it played no part in her removal and it also says that it has no vicarious responsibility for the conduct of the Director or the conduct of the mission or its staff.  As for Mr Gunner, it was the Commonwealth’s case that he was committed to St Mary’s Hostel with the consent of and at the request of his mother, Topsy, and that, thereafter, he was detained by the Australian Board of Missions.  The Commonwealth claims that it did not, nor did the Director of Native Affairs, play any part in the removal or detention of the young Peter.  It relies, inter alia, on exhibit A73:A21, a document that purports to bear Topsy’s mark, consenting to her son, Peter being “educated and trained in accordance with accepted European standards”.

107               The complaint by the applicants that they were removed from their families and their culture, allegedly by the application of the Commonwealth’s policies, lies at the heart of their cases.  Taken to their extremity, the applicants have challenged the conduct of the Commonwealth, claiming that it amounted to a misuse or abuse of these policies.  The immediate and specific answer by the Commonwealth was that it did not, as a matter of fact or as a matter of law, participate in either removal or detention.  But there is also a question whether there is, or might be, a larger, more general answer.  Is there, for example, a case for the Commonwealth that its policies were grounded upon the belief that, in some circumstances, it was better to remove a child from its environment than to leave him or her there, notwithstanding the emotional and psychological trauma that may be occasioned to both child and parent?  It could not be seriously questioned that trauma was likely to be occasioned, irrespective of whether the removal was, or was not, against the parents’ will but, could it be argued that welfare schemes that separated a child from its parent were designed to protect and assist the child, placing its interests first, even though there may have been a significant risk of pain and trauma at the parting?  There are, of course, contrary views, including those explained by Brennan CJ in Kruger at 40:

“In retrospect, many would say that the risk of a child suffering mental harm by being kept away from its mother or family was too great to permit even a well-intentioned policy of separation to be implemented ….”

 

This potential, further answer was not pursued by the Commonwealth but, as will be seen, there were writings that suggested it.

108               It is also necessary to emphasise that both applicants have chosen to limit their claims to actions against the Commonwealth.  Mrs Cubillo has not sued the Director of Native Affairs, nor has she sued the Aborigines Inland Mission or Mr Walter.  Mr Gunner has not sued the Director nor has he sued the Australian Board of Missions or Mr Constable.

109               I remain convinced that the applicants’ claims must be assessed according to the standards that were acceptable in the 1940s, 50s and 60s.  In these reasons for judgment it will, therefore, be necessary to have regard to the conditions that prevailed in the Northern Territory in the period commencing in 1947 (when Mrs Cubillo was taken to the Retta Dixon Home) and ending in 1963 (when Mr Gunner left St Mary’s).  The assessment of those conditions must then be applied to the personal circumstances of Mrs Cubillo and, separately, to the personal circumstances of Mr Gunner.  But it will not be possible to apply those prevailing conditions generally across the board to all part Aboriginal children.  The evidence in the trial has shown that one cannot generalise.  No matter how distasteful it may be, the fact remains that there were then (as, indeed, there are now) children, both black and white, who were and are in need of care.  Sister Eileen Heath made that clear in her affidavit of 25 June 1998:

“I was employed by the government as a Welfare Officer from 1956 until 1970.  For most of 1956, I was working as a Welfare Officer up in Darwin, primarily opening the first receiving home for welfare children in Fannie Bay.  The purpose of the receiving home was to provide temporary accommodation for neglected or destitute children until a foster family or hostel could be found for them.  Generally, these were children who had been placed in care by a court order, although in an emergency a child might be placed in the receiving home for a few days until a court order was obtained.  Most of the children were coloured, but there were some white children in the receiving home from time to time.”

110               Later, when working as a welfare officer in Alice Springs she also had to face the problem of neglected children.  She addressed the subject in par 151 of her affidavit:

“However, sometimes our work involved reporting to the District Welfare Officer about neglected or destitute children.  He then made a decision whether to recommend their removal.  After the part-aboriginal people achieved drinking rights, alcoholism and violence became larger social problems for them, which often had welfare implications for their children.”

111               Sister Eileen was also a member of the State Children’s Council between 1951 and 1958.  That Council met in Darwin to consider child welfare matters; it was concerned with children who had been committed as State children into the care of the Council by the Courts.  Such children would have been committed because of delinquency in some cases and because of neglect in others.  The program of care for delinquent and neglected children transcended all boundaries of colour and race.

112               Sister Eileen presented a paper to a Missions-Administration Conference that was held in August 1955, entitled “The Needs of the Half-Caste Community Now Exempt from the Aboriginals Ordinance”.  In relation to the removal of part Aboriginal children from their families, she made the following apparently contradictory statements:

“Where possible children should be left with their parents.  The only hope for the part white lies in the strength of the family unit.  Taking the children away from their parents only relieves the parents of the little sense of responsibility they have; we need to foster it to the utmost by encouraging them to provide for a family.

The separation of the full blood and half caste is desirable.  It is quite obvious that if they are allowed to continue to mix, assimilation will be retarded.  This is where institutions such as St Mary’s can play a part.  Mixed blood children should be taken from native camps at the earliest possible age but certainly not the children of mixed blood parents unless those parents are incapable of providing suitable homes for their children, or are living in remote places where it is not possible to give their children an opportunity of education.”

113               The authorities paid a small tribute to Sister Eileen in 1981 when a new street in Alice Springs was named Heath Street in her honour and in recognition of her work with Aboriginal children.  A contemporaneous newspaper article, covering the event was headed “An Aborigines’ friend”.  Normally, one would not attach great weight to the contents of a newspaper article when the author was not called to give direct evidence, but I have mentioned this event because it matches my assessment of Sister Eileen.  Having heard her evidence, having read her papers, having had the opportunity to observe her, I am in no doubt that the views that she expressed in the 1940s and 1950s – no matter what the present day assessment of those views may be – were views that were dominated by her beliefs that she was working in the best interests of the Aboriginal and part Aboriginal people.  To explain what I have just written I use the subject of “assimilation” as an example.  Today there are many people, both Aboriginal and non Aboriginal, who are totally opposed to assimilation.  Their preferred view is a policy of self-management.  However, Sister Eileen was a strong supporter of assimilation, as was the Honourable PW Hasluck MP (later Sir Paul Hasluck) the Federal Minister for Territories from 1951 to 1963.  During the course of her cross-examination, Sister Eileen agreed that so far as she was concerned, she did not understand the policy of assimilation to include any emphasis on Aboriginal culture.  On the other hand, in her re-examination, she agreed with the proposition that, in her experience, both as a missionary at St Mary’s and as a welfare officer, there was no “compulsion about being absorbed or assimilated”.  It was Sister Eileen’s view that:

“It depended on the people themselves, how far they want to be assimilated or wanted to be assimilated.”

114               In her 1955 paper, Sister Eileen wrote on assimilation, saying in part:

“Theoretically, they have virtual equality with whites, citizenship rights making them equal but separate.  The barriers against full enjoyment of all the privileges of their citizenship today are not legal, but mainly social barriers.  That there are some genuine difficulties in the way of implementing this policy of absorption fully is only to be expected.”

Asked in cross-examination to expound on this statement Sister Eileen said:

“This paper was prepared just after 1953 when the part-Aboriginal people were exempt and they had full citizenship rights which meant that they could come into the town, they could purchase property if they wanted to – had sufficient funds and they were being prepared or had to be prepared for assimilation into a white community.  Better housing was being provided for them, but it was being provided in amongst the white population and we had to prepare them to understand what it meant to live in a street with white people perhaps each side of them and to conform to the normal white standard of living.”

115               In 1956, during her time as a welfare officer at Alice Springs, Sister Eileen, at the request of the then Director of Welfare, Mr Harry Giese, submitted a report on the operations of St Mary’s.  At that time, her duties as a welfare officer did not take her to St Mary’s; the Hostel was in Mrs Ballagh’s territory.  Furthermore, as Sister Eileen conceded, she did not visit St Mary’s for the purpose of the preparation of her report.  As she said:  “I prepared my report based on my time at St Mary’s and on things that I had heard about it after I left”.  Although these were important qualifications, they did not diminish the value of the contents of her report which contained important insights into the thinking of the day.  In particular, one can see in Sister Eileen’s writings how she based her concerns for part Aboriginal children upon the premise that they were to be assimilated into western culture.  In the first place, she predicated her report upon the premise that:

“These outback children have been admitted to St Mary’s because parents desire education for their children …”

To have excluded those part Aboriginal children from St Mary’s would have meant, in Sister Eileen’s opinion, that they were excluded “from the opportunity of education and social training and adjustment, the necessary prelude to full citizenship”.  Sister Eileen’s theories were so supportive of the doctrine of assimilation that she advocated bringing in part Aboriginal children “at a much earlier age than school age – approximately three – four years”.  She explained that proposal by adding:

“This would ease their social adjustment and enable them to start school with something closer to the background of a normal European child, an advantage which is presently sadly lacking and which has decided ill effects on their whole future.”

Sister Eileen continued in her report that, at that time, she considered that St Mary’s, because of “its wide divergence of functions and limited facilities”, was failing to fulfil substantially its main requirements.  Sister Eileen described those requirements as the:

“training and preparation of part aboriginal children to the social and academic standard which would enable them to be readily assimilated into our own society … .”

116               At a later stage in her report, when dealing with the subject of education, Sister Eileen advocated seeking the cooperation of teachers “by seating a coloured child beside a white one in class instead of the present usual method of segregating them”.  She saw this as “the first step towards assimilation”.

117               Sister Eileen discussed the subject of neglected children in her report dated 2 October 1957 to the Director of Welfare.  She wrote that she saw the need for a Receiving Home where “destitute and neglected” children could be cared for.  However, she was concerned to preserve, if possible, any familial bond that might remain.  She therefore added that the Receiving Home should be seen as a Centre:

“… where approved parents could sometimes visit their children, under supervision, thus maintaining a parent-child relationship where such a relationship would be of mutual benefit.”

Dictatorial though this statement might seem, it must be remembered that Sister Eileen was writing about the welfare of those children whom she had earlier described as “destitute and neglected”.  Many people would, today, be angered by some of Sister Eileen’s views.  She wrote in her 1956 report complaining that on completion of primary school education:

“girls are at present not taught domestic arts, dress and clothing making etc to fit them for a higher station as good wives and mothers.”

That statement, however, was advanced as acceptable thinking by an intelligent, experienced, caring woman who had spent the greater part of her adult life working for and seeking to advance the interests of Aboriginal and part Aboriginal people.  It is a tangible example of the shift in values in the last fifty years.  Whilst it is easy to imagine the criticism that would be levelled at a person who made such a statement these days, it is not so easy to imagine that the same criticism would have been forthcoming in Sister Eileen’s time.

Accepting only part of the Evidence of a Witness

118               Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable.  Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person.  The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest.  After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it.  I mention some authorities that support those propositions.

119               In Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155, the observations of Lord Blackburn, who dissented on the main question on appeal, support the view that a judge may believe part of a witness’ evidence and disbelieve another part.  At 1201 he observed:

“The jurors are not bound to believe the evidence of any witness; and they are not bound to believe the whole of the evidence of any witness.  They may believe that part of a witness’ evidence which makes for the party who calls him, and disbelieve that part of his evidence which makes against the party who calls him …”

120               In Australia the same principle applies.  In Christmas v Nicol Bros. Pty Ltd (1941) 41 SR (NSW) 317, the Court considered a motion to set aside a jury verdict for the defendant in an action for negligence against a company and its employee arising out of the employee’s negligent driving.  Jordan CJ, who delivered the judgment of the Court, observed at 322:

“… it would be for the jury who saw and heard the witnesses to decide whether they accepted their evidence.  They were perfectly at liberty to reject the whole of their evidence, or to accept some and reject the rest, however intimately it might be associated with what they accepted, unless there is something to show that reasonable men could not take up such an attitude: Ward v Roy W. Sandford Ltd 19 SR (NSW) 172 at 185; Hammer v S. Hoffnung & Co Ltd 28 SR(NSW) 280 at 282-3.”

121               A trial judge is not restricted in his or her assessment of a witness.  By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter.  There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness’ evidence must be rejected.

122               In S v M (1984) 36 SASR 316, a case that concerned a contest between a mother and a father for the custody of their ex-nuptial child, Walters J made observations about the extent to which a trial judge is at liberty to believe part of the evidence given by a witness and to reject the rest.  Walters J, noting that the case was a custody contest, remarked at 319-320:

“… it would not be right to say that in determining the weight and credibility to be given to the evidence of a witness, one should reject his or her entire testimony if parts of it are found to be untrustworthy, or even false and mendacious.  Because part of his or her evidence is unreliable, it does not follow that other parts of it are unreliable and that the whole of his or her evidence should be disbelieved.  So often, in a case of this kind, the interests or bias of one party and his supporting witnesses may exercise on their minds an influence of which they are unconscious and which leads them to give distorted, but yet not deliberately false, accounts of the matters to which they depose in evidence.  It seems to me that in making his findings of fact, a trial judge is not bound to believe the whole of the evidence of any witness; he is at liberty to believe part of the witness’s evidence and to reject the rest …  I think I am free to accept or to reject the whole of the testimony of the applicant or the respondent, as the case may be, or to accept some part of it and to reject the rest, however intimately it might be associated with what I have accepted.”

123               A similar conclusion has been reached by this Court.  In Flint v Lowe (von Doussa, Higgins, Nicholson JJ, 23 June 1995, unreported) Nicholson J (with whom von Doussa J agreed) said at 11-12:

“It is always the case that the jury or judicial officer charged with the duty of finding whether a charge is established beyond a reasonable doubt may accept whole or part or none of the evidence of any witness … Once the complainant’s credibility on that issue was accepted, the evidence would not be tainted by the rejection of other evidence.”

 

124               There are sections in the evidence of Mrs Cubillo, of Mr Gunner and of some of their witnesses that I cannot rely on.  In making that statement, I do not thereby infer that either Mrs Cubillo or Mr Gunner deliberately lied in Court (although I remain puzzled about Mrs Cubillo’s denial, adverted to later in these reasons, that she discussed her experiences at the Retta Dixon Home with Mrs Mai Katona).  As Walters J noted in S v M the interests of a party may exercise on his or her mind an influence of which they are unconscious; such may well be the case here.  Both Mrs Cubillo and Mr Gunner showed objective signs of intense distress at times.  At one stage during the trial, Mr Gunner had to seek medication.  I am convinced that they have, with total conviction, concluded that they have a just cause to pursue the Commonwealth.  I have no doubt that they believe that their experiences – what they might call their incarcerations – were legally, as well as morally, wrong.  Armed with this powerful persuasion, there is the risk that, in some areas, they may have given distorted, but not deliberately false, accounts of matters to which they deposed in their evidence.  In exercising this caution, I have chosen not to engage in a personal or subjective assessment of their demeanour.  I would be entitled to have regard to their presentation in Court, but I prefer not to rely on that.  I find more comfort in making an objective assessment of the evidence so that I can test whether it appears to be inherently improbable, or whether it matches other evidence, or whether it is logically probative.  I am conscious of the views of Kirby J on this subject in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at 617:

“There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom.  Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new.  In Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The Palitana), (1924) 20 LI L Rep 140 at 152 Atkin LJ remarked that ‘an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour’.

125               I do not think that the evidence of either Mrs Cubillo or Mr Gunner was deliberately untruthful but I am concerned about their ability to recall, accurately, events that occurred so many years ago when they were small children.  I am also concerned that they have unconsciously engaged in exercises of reconstruction, based, not on what they knew at the time, but on what they have convinced themselves must have happened or what others may have told them.  I will identify these areas of concern when I discuss the detail of their evidence.

Documents

126               During the course of the trial numerous documents were tendered:  some by the applicants, some by the Commonwealth.  In the overwhelming number of cases, these documents were either tendered by consent or, at least, without objection.  With a few exceptions, the authors of those documents are now dead.  However, the documents have been received into evidence and the question now arises:  what weight is to be given to their contents?  Some of them cover issues that have been hotly disputed.  In such a case, where the author cannot be tested under cross-examination, should any, and if so what weight, be attached to the document?  Normally, in the absence of the author, a court would not be inclined to attach weight to the contents unless there were other corroborative sources.  But this is not a normal case.  Furthermore, if I adopt that attitude in respect of some documents, should I not adopt it in respect of all documents?  Putting to one side those cases where the parties agree that the contents of particular documents are accurate, would there be any justification for me relying on the contents of some documents, such as reports and memoranda from a patrol officer to his immediate superior, whilst not relying on the contents of other documents (of which a report that came to be known as “the Dentith report” is a notable example).  One suggestion was that documents that were in the nature of official records should be afforded their face value but that no weight should be attached to a document if its contents were challenged.  That does not seem to me to be a practical or an equitable solution when, because of the extreme delay in the institution of these proceedings, the author of the document is dead.

127               My solution is to have regard to the contents of all documents that have been received into evidence and to have regard to the contentions (if any) that have been raised with respect to the contents of any such document.  I will also have regard to any other evidence that might lend weight to the acceptance of the contents of the contentious document.  Thus, for example, the allegations that were made in the Dentith report are far from foreign to other items of evidence about the character of Mr Des Walter, the missionary at the Retta Dixon Home who is said to have viciously assaulted Mrs Cubillo.  In the case of the Dentith report, I see no reason why I should not accept it at face value.  It finds general support in the evidence of Mrs Cubillo and Mrs Katona.  Its contents also rest conformably with what Mr McCaffrey, who was then the Acting Director of Native Affairs, wrote about Mr Walter.

The Relevant Legislation

128               In considering the claims that Mrs Cubillo has made against the Commonwealth, it will be necessary to consider, primarily, the provisions of the Aboriginals Ordinance 1918 (NT) (“the Aboriginals Ordinance” or “the 1918 Ordinance”).  It was made by the Governor-General of the Commonwealth on 12 June 1918 and commenced the following day.  The Aboriginals Ordinance repealed the earlier Aboriginals Ordinance 1911 (NT) and it also declared that the South Australian legislation – the Northern Territory Aboriginals Act 1910 (SA) -  had ceased to apply to the Northern Territory.  In the case of Mr Gunner, it will be necessary to have regard, not only to the provisions of the Aboriginals Ordinance, but also to the provisions of the Welfare Ordinance 1953 (NT) (“the Welfare Ordinance”).

129               By virtue of the provisions of the Northern Territory Acceptance Act 1910 (Cth) (“the Acceptance Act”), the Commonwealth accepted the Northern Territory from South Australia “as a Territory under the authority of the Commonwealth, by the name of the Northern Territory of Australia” – subs 6(1).  At the same time, the Commonwealth also enacted the Northern Territory (Administration) Act 1910 (Cth) (“the Administration Act”), the object of which was to create a regime for the administration of the Territory by the Commonwealth.  The Administration Act provided that, until the Parliament made other provisions for the Government of the Territory, the Governor-General might make Ordinances having the force of law in the Territory – subs 13(1).  It was pursuant to this provision that the Governor-General made the Aboriginals Ordinance.

130               The office of the Administrator was created by s 4 of the Administration Act; it provided:

“(1)     The Governor-General may appoint an Administrator for the Territory.  The Administrator shall be appointed by the Governor-General by commission under the seal of the Commonwealth, and shall hold office, subject to good behaviour, for five years.

(2)     The Administrator shall exercise and perform all powers and functions that belong to his office according to the tenor of his commission, and according to such instructions as are given to him by the Minister.”

131               The Administration Act was amended significantly by the Northern Territory (Administration) Act 1947 (Cth) (“the 1947 Act”).  Under the 1947 Act, a Legislative Council for the Territory was established having the power to make Ordinances for the peace, order and good government of the Territory – s 4U; however, no Ordinance could have effect until assented to by the Administrator.  Furthermore, the Governor-General had a power of disallowance which, if implemented, had to be done within six months of the Administrator’s assent.

132               Section 4 of the 1918 Ordinance provided for the appointment by the Administrator of a Chief Protector of Aboriginals; the section provided that the Chief Protector was to be “under the Administrator” and was to be “responsible for the administration and execution of this Ordinance.”  In 1939 the title of “Chief Protector of Aboriginals” was changed to “Director of Native Affairs”.  Henceforth, I will use the title “Director of Native Affairs” as a term of convenience when referring to the person who either held the office of the Chief Protector of Aboriginals or the office of Director of Native Affairs.  Under the Aboriginals Ordinance, the Administrator was also empowered to appoint Protectors of Aboriginals (in addition to a Chief Protector); the office and title of Protector survived the 1939 amendments to the legislation.

133               Under s 6 of the 1918 Ordinance the Director was 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.”

134               Speaking of the Aboriginals Ordinance in Kruger, Dawson J said at 79:

“… the powers conferred by the 1918 Ordinance were required to be exercised in the best interests of the Aboriginals concerned or of the Aboriginal population generally.”

 

His Honour saw the prevention of disease and neglect and unsanitary conditions as a reason for the 1918 Aboriginals Ordinance.  He said of it that it “would appear to have been motivated by similar concerns” to those of the South Australian legislation which the 1918 Ordinance repealed.  Toohey J was of the same view; he regarded the legislation as beneficial, saying of it at 85:

“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 …”

135               In s 3 of the 1918 Ordinance, the word “Aboriginal” was defined to mean any person who was:

“(a)     an aboriginal native of Australia or of any of the islands adjacent or belonging thereto; or

 

(b)     a half-caste who lives with an aboriginal native as wife or husband; or

 

(c)     a half-caste, who, otherwise than as the wife or husband of such an aboriginal native, habitually lives or associates with such aboriginal natives: or

 

(d)     a half-caste male child whose age does not apparently exceed eighteen years; or

 

(e)     a female half-caste not legally married to a person who is substantially of European origin or descent and living with her husband.”

 

136               In 1953, the definition of “Aboriginal” was materially amended by Ordinance No 9 of 1953.  The word thereafter meant:

“(a)     a person who is an aboriginal native of Australia or of an island which, being subject to the laws of the Commonwealth, of a State or of the Northern Territory, is adjacent to Australia:

(b)     a person who lives after the manner of, follows, adheres to or adopts the customs of persons described in paragraph (a) of this definition and at least one of whose ancestors was a person described in that paragraph;

(c)     a person, being under the age of eighteen years, at least one of whose ancestors was a person described in paragraph (a) of this definition, and –

(i)        whose care, custody, or control has been undertaken by the Director under section six of this Ordinance before the date when the Aboriginals Ordinance (No 2) 1953 comes into operation; or

(ii)       whom the Director has caused to be kept in a reserve or an aboriginal institution under section sixteen of this Ordinance, before the date when the Aboriginals Ordinance (No. 2) 1953 comes into operation; or

(d)     a person, at least one of whose ancestors was a person described in paragraph (a) of the definition, in respect of whom a declaration is made under section three A of this Ordinance … .”

137               Initially, the expression “half-caste” had been defined in the 1918 Ordinance as meaning:

“… any person who is the offspring of parents, one but not both of whom is an aboriginal and includes any person one of whose parents is half-caste.”

That definition was omitted from the legislation in 1953 as were all other references to the term “half-caste”.  Whether a part Aboriginal person would or would not come within the definition of “Aboriginal” after the introduction of the 1953 amendment would be a question of fact to be determined in respect of each person by having regard to the parameters that were set out in the new definition.  The 1953 Amendment was most significant in that it removed from the “section 6 control” of the Director those part Aboriginal people (who formerly fell within the definition of “half-caste”) but who did not come within the new definition of the word “Aboriginal”.

138               Ordinance No 9 of 1953 amended the 1918 Ordinance in many important respects.  One such amendment was the introduction of a new section, s 3A, which (inter alia) empowered the Director of Native Affairs, subject to the approval of the Administrator, to declare that a person, one of whose ancestors was a person coming within the statutory definition of “Aboriginal”, to be deemed to be an Aboriginal.  There were two important prerequisites, however, to the making of any such declaration:

·               the Director must consider it to be in the best interests of the person; and

·               the person must request the Director to make the declaration.

139               Peter Gunner, being a child of only eight at the time when he was taken to St Mary’s was not competent to make the request that was referred to in the statute; hence, as I see it, the authorities perceived the need for Topsy, his mother, to request the declaration.  The making of that request by Topsy then triggered a memorandum dated 14 January 1957 from Mr Milliken, as the acting Director of Welfare, to the Administrator seeking the Administrator’s approval to the declaration that Peter Gunner be deemed to be an Aboriginal.  Mr Archer, the Administrator endorsed his approval on 15 January 1957 and Mr Giese made the necessary declaration a month or so later on 20 February.

140               In the interlocutory judgment I said at 411 that:

“… the likelihood is that Mrs Cubillo would have come within the 1953 definition of ‘Aboriginal’.  She was then a person under the age of eighteen years, one of whose ancestors was an Aboriginal native of Australia; she was also a person whose care, custody or control had been undertaken by the Director under s 6 of the Ordinance.  It is also likely, but for different reasons, that Mr Gunner would have come within the same definition on the ground that one of his ancestors (his mother) was an Aboriginal native of Australia and that he was a person living ‘after the manner of’ persons who were Aboriginal natives of Australia.”

An order of committal, using the powers of ss 6 and 16 of the 1918 Ordinance had been made on 18 August 1953 when the Acting Director of Native Affairs committed Lorna Nelson to the custody of the Retta Dixon Home until 8 August 1956, her eighteenth birthday.  The applicants, in their final submissions, accepted those tentative conclusions.  I now express them as formal findings.

141               Section 13 of the Aboriginals Ordinance empowered the Administrator to declare missions and other organisations to be “an aboriginal institution for the maintenance, custody, and care of aboriginal and half-caste children …”.  It also empowered the Administrator to nominate the Superintendent of such an “aboriginal institution”.  Subsequent subsections gave the Administrator powers of revocation and subject thereto subs 13(6) was in the following terms:

“(6)     Every aboriginal and half-caste child for the time being an inmate of any aboriginal institution shall be under the control and supervision of the Superintendent.”

142               Section 13 of the Aboriginals Ordinance can stand alone, independent of the Director of Native Affairs and independent of s 6.  In other words, the legislation permitted institutions to be established by appropriate charitable or religious bodies to care for Aboriginal and part Aboriginal children.  That was the purpose of s 13.  Independently of that provision, the legislation elsewhere (ie in s 6), authorised the Director of Native Affairs, in the circumstances postulated by that section, to undertake the care, custody or control of any Aboriginal or part Aboriginal child.  Having exercised that power in a particular case, it was then open to the Director to cause the child to be kept in an institution that was operating under s 13.

143               Section 16 of the Ordinance empowered the Director to cause an Aboriginal person to be kept within the boundaries of any reserve or Aboriginal institution and, once there, he or she could be removed by the Director from that place to another like place.  It was a provision of a different kind to the provision of s 6.  As Brennan CJ said in Kruger at 37, on its face, it was not simply intended to serve the interests of the child over whom the power might be exercised.  Nevertheless Dawson and Gummow JJ still saw a welfare purpose and a non-punitive purpose in s 16.  For example, Dawson J said at 51-52:

“… whilst s 16 did not contain any explicit requirement that the powers which it conferred were to be exercised for the welfare of Aboriginals or ‘half-castes’, it is clear enough that it was so circumscribed.”

Gummow J said at 162:

“The power of the Chief Protector to take persons into custody and care under the 1918 Ordinance were, whilst that law was in force, and are now, reasonably capable of being seen as necessary for a legitimate non-punitive purpose (namely the welfare and protection of these persons) …”

 

In discussing the extensive powers that are contained in s 16, Brennan CJ quoted, with approval, a lengthy passage from the judgment of Fullagar J in Waters v The Commonwealth (1951) 82 CLR 188 at 194-195:

“The powers which the Director wields are vast, and those over whom he wields them are likely often to be weak and helpless.  His responsibility is heavy.  When he acts, every presumption has to be made in his favour.  He must often act on his own opinion in circumstances of difficulty, and no court can substitute its opinion for his.  But, on the other hand, the courts must be alert to see that, if that which is not expected does happen and he does mistake or abuse his power, the mistake or abuse does not go either undetected or unredressed.  The material before me in this case, however, fails completely, in my opinion, to make even a prima facie case of abuse of power.

It was argued that, both under s 6 and under s 16, the only consideration which should affect the discretion of the Director was the welfare of the particular aboriginal concerned.  This may be so under s 6, but, so far as s 16 is concerned, it is, in my opinion, by no means the only legitimate consideration.  Unlike s 6, s 16 contains no reference to the formation of any particular opinion on the part of the Director.  The discretion given is in terms absolute.  I have no intention, on such an application as this, of laying down any rules for the guidance of the Director.  But I think I should say that, in my opinion, he may legitimately take into consideration a number of other factors in addition to the welfare of the particular aboriginal concerned, and that these include the welfare of other aboriginals and the general interests of the community in which the particular aboriginal dwells.”

 

144               The powers of the Director under the 1918 Ordinance were exceptionally wide. He was the legal guardian of every Aboriginal:  s 7 and his extensive powers under s 6 of the Ordinance enabled him to enter upon premises without a warrant and to take the person into custody – again without a warrant.  Any decision of the Director was based upon his opinion; there was no obligation on the part of the Director to refer to any third party; his power was almost without restraint.  That statement is subject to the qualification that when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised:  Kruger.  It is also timely to emphasise that the power to take a person into custody could only be exercised when, in the opinion of the Director, it was necessary or desirable in the interests of the person to do so.  Thus the power in s 6 “to undertake the care, custody, or control” of children was conditioned on the opinion of the Director of Native Affairs that it was necessary or desirable in the interests of the child for him to do so:  Kruger at 35 per Brennan CJ.  It was not a power to be exercised adversely to those interests.  This beneficial interpretation of the legislation must remain paramount in my opinion even though I am aware, as Murphy J said in Neal v The Queen (1982) 149 CLR 305, a case of criminal assault, that “Aborigines have complained bitterly about white paternalism robbing them of their dignity and right to direct their own lives”: at 318.

145               The primary duties of the Director were set out in s 5 of the Ordinance.  Subsection (1) of that section empowered the Director:

“(a)     to apportion, distribute, and apply, as seems most fit, under the direction of the Administrator, the moneys at his disposal for the purpose of carrying out this Ordinance;

(b)     to distribute blankets, clothing, provisions, and other relief or assistance to the aboriginals;

(c)      to provide, as far as practicable, for the supply of food, medical attendance, medicines, and shelter for the sick, aged and infirm aboriginals;

(d)     to provide, when possible, for the custody, maintenance, and education of the children of aboriginals;

(e)     to manage and regulate the use of all reserves for aboriginals; and

(f)      to exercise a general supervision and care over all matters affecting the welfare of the aboriginals, and to protect them against immorality, injustice, imposition and fraud.”

146               It should be noted that the power that was identified in par 5(1)(a) to apportion, distribute and apply moneys was “under the direction of the Administrator”, an inhibition that did not appear in the exercise of the remaining powers in subs 5(1).  Then again, as has already been noted, subs 4(1) stated that the Director, in assuming responsibility for the administration and execution of the Ordinance, was “under the Administrator”.

147               It is, in my opinion, important to note the variations in language in s 5 of the 1918 Ordinance.  Paragraph 5(1)(e) alone, of all the duties, called for the Director “to manage and regulate” thereby requiring a direct involvement and active participation in all usual activities relating to reserves for Aboriginals.  When one then comes to consider par 5(1)(f) and its use of the noun, “supervision”, one is required to accept that that measure of involvement and participation is different and, indeed, lesser.  To supervise, according to The Macquarie Dictionary (3rd Ed, 1997) is “to oversee” or “to have the oversight and direction” of some activity or event, whereas the dictionary states that to regulate means “to control or direct by rule, principle, method, etc.”.  In the application of par 5(1)(f) to the facts of this case, there is a prima facie case for saying that the power that the Director of Native Affairs had in respect of those part Aboriginal children who were residing at the Retta Dixon Home and St Mary’s Hostel was one of supervision and care over all matters affecting their welfare.  That was a power to oversee or, as I would prefer to say, observe – but it was not a power to manage or regulate the institutions.  There is, however, an important qualification to that proposal.  It is this.  The Retta Dixon Home was situated geographically, within the Bagot Reserve, that is, within an area of land that had been set aside as a Reserve for the use of Aboriginal people.  That was not the case with St Mary’s however. Being on a Reserve meant therefore that the powers in par 5(1)(e) were available to the Director to “manage and regulate” the use of the Reserve, which in my opinion would have included a power to “manage and regulate” the operations of the Retta Dixon Home.  But, as I have pointed out, those powers of management and regulation would not have extended to St Mary’s.

148               There were, in addition, significant powers reserved by the 1918 Ordinance to the Administrator.  Even though he or she could not, nor could the Director, normally involve the Native Affairs Branch in the day to day management of an institution, the Administrator was able to wield very effective powers.  In the first place, s 13 of the 1918 Ordinance authorised the Administrator to declare “any mission … home or other institution … to be an aboriginal institution for the maintenance, custody and care of aboriginal and half-caste children …”.  The Administrator could also name a person as “the Superintendent of the aboriginal institution”.  The Administrator was empowered to revoke the licence of an Aboriginal institution; he or she could also revoke the appointment of the Superintendent of such an institution.  But the greatest lever that could be used was the financial aid that the Commonwealth gave to the institutions.  Without that aid, the institutions were unable to operate.

149               Although the 1918 Ordinance did not give to the Director or the officers of the Native Affairs Branch a specific right of entry to and inspection of the institutions, subs 6(2) required “[a]ny person on whose premises any Aboriginal or half-caste” is “to facilitate, on the demand of the Director, the taking into custody of the Aboriginal or the half-caste”.  In addition, the Director’s statutory obligation “to exercise a general supervision and care” could not be carried out effectively unless that right of entry and inspection existed.  In my opinion, a power of entry and inspection should be implied, because it would have been necessary for the Director to have it so that the Native Affairs Branch was able properly to discharge its functions: Re Sterling; Ex parte Esanda Ltd (1980) 30 ALR 77 at 82 per Lockhart J; Australian Securities Commission v Bell (1991) 104 ALR 125 at 137 per Sheppard J.

150               By force of statute, an inmate was therefore placed under the control and supervision of the Superintendent for the time being of the relevant institution.  Both the Retta Dixon Home and St Mary’s Hostel were declared to be Aboriginal institutions and different persons, at different times, were nominated Superintendents.  Miss Shankelton was the Superintendent of the Retta Dixon Home throughout the whole of the time that Mrs Cubillo was an inmate.  Sister Eileen Heath was the first of several Superintendents of St Mary’s Hostel.  She was succeeded, successively by Father Percy McD Smith, Archdeacon Rogers and Archdeacon Bott.

151               The Welfare Ordinance came into operation on 13 May 1957; it repealed the 1918 Ordinance.  By the date of its commencement, Mrs Cubillo had left the Retta Dixon Home but Mr Gunner was still an inmate of St Mary’s Hostel.  The word “institution” was defined in the Welfare Ordinance in such a way that it included an “establishment approved by the Administrator … as an institution for the purposes of this Ordinance”:  ss 6 and 40.  As the parties agreed that St Mary’s Hostel was an approved institution for the purposes of the Welfare Ordinance, it is therefore necessary to note its material provisions because of their application to Mr Gunner.  In the Welfare Ordinance, the Director of Welfare was the comparable officer to the Director of Native Affairs; he was also “under the Administrator”, but was appointed by the Minister – not by the Administrator, who had previously held the appointing power.

152               A copy of the duty statement for the Director of the Welfare Branch can be found in a volume entitled “Respondent’s common issues list of documents for inclusion in the Court Book”.  All of the duties that are listed are prefaced with the statement that the Director is “responsible to the Administrator” for the performance of those duties.  Subject thereto, the Director of Welfare was responsible for the administration of the Ordinance.  The Welfare Ordinance introduced the concept of a “ward” who was defined to mean “a person in respect of whom a declaration, made under section fourteen of this Ordinance, is in operation”; the Director of Welfare was, by virtue of s 24 of the Welfare Ordinance, the guardian of all wards.  Subsection 14(1) empowered the Administrator to declare a person to be a ward:

“if that person, by reason of-

(a)     his manner of living;

(b)           his inability, without assistance, adequately to manage his own affairs;

(c)     his standard of social habit and behaviour; and

(d)     his personal associations,

           

stands in need of such special care or assistance as is provided for by this Ordinance.”

153               Subsection 14(1) was not restricted in its operation to a particular class of persons; the Administrator’s powers to declare a person a ward extended to all citizens of the Territory; it was not limited to Aboriginal or part Aboriginal people.  The duties of the Director of Welfare in relation to wards were contained in s 8 of the Welfare Ordinance.  In many respects they were directed to the issues that were covered by s 5 of the Aboriginals Ordinance, but in more detail.  Paragraph (a) of s 8 contained the following provisions:

“It is the duty of the Director –

(a)               in relation to the wards, to take steps –

(i)                 to promote their social, economic and political advancement for the purpose of assisting them and their descendants to take their place as members of the community of the Commonwealth;

(ii)               to arrange as far as is practicable for the education of wards, including their vocational training, by collaboration with, and assistance to, the education authority and educational institutions and in other appropriate ways;

(iii)             to promote their physical well being, to inculcate proper habits of hygiene and sanitation and to improve their standards of nutrition and housing;

(iv)             to detect, prevent and cure disease and for that purpose to establish and maintain a liaison with the Commonwealth Department of Health;

(v)               to arrange for their vocational training and to obtain suitable employment for them in industrial and other enterprises and for this purpose to establish and maintain a liaison with appropriate organizations;

(vi)             to provide such relief and assistance as is necessary or appropriate; and

(vii)           to exercise a general supervision and care over matters affecting their welfare.”

154               There was a power vested in the Director of Welfare in s 17 of the Welfare Ordinance to take a ward into custody and to order that he or she be removed to and kept within a reserve or institution.  That power equated to a like power in ss 6 and 16 of the former Aboriginals Ordinance, but there were some important differences; for example subs 17(2) provided that the Director of Welfare was not to exercise the power to take a child into custody if by so doing:

“(a)     a child under, or appearing to be under, the age of fourteen years would be removed from his parents: or

(b)     a parent would be removed from his children.

unless the Administrator has, in writing, authorized the Director so to do.”

Furthermore, the Director of Welfare could not act under s 17 unless the Administrator had first made the necessary declaration that the person was a “ward” and s 32 of the Welfare Ordinance gave the ward a right of appeal against such a declaration.

155               Following upon the introduction of the Welfare Ordinance, the Administrator declared Peter Gunner to be a ward under s 14 of the Welfare Ordinance on 13 May 1957.  However, there was no evidence that the Director of Welfare made an order for the continued detention of Peter under s 17 of the Welfare Ordinance.

156               The additional duties of the Director as set out in s 8 of the Welfare Ordinance included the following:

“(b)     …

(c)     to supervise and regulate the use and management of institutions, other than institutions established by the Commonwealth;

(d)     to control the management of institutions established by the Commonwealth;

(e)      to supervise and regulate the use and management of reserves;

(f)      …

(g)     …”

The language of these paragraphs differs substantially from the language that was previously found in pars 5(1)(e) and (f) of the 1918 Ordinance.  The legislature did however maintain another distinction, but in this case it was a distinction between supervision and regulation on the one hand and control on the other; the Director “controlled” the management of institutions that had been established by the Commonwealth but there was only a duty to “supervise and regulate” the use and management of other institutions of which St Mary’s was an example.  The presence of the word “supervision” in par 5(1)(f) of the Aboriginals Ordinance and the verb “to supervise” in par 8(e) of the Welfare Ordinance invites an assumption that the two paragraphs have the same effect.  I do not think, however, that such an assumption would be correct.  In the Aboriginals Ordinance the powers of the Director are “general supervision” in par 5(1)(f) as against a power “to manage and regulate” in par 5(1)(e); in the Welfare Ordinance the power is “to supervise and regulate” in pars 8(c) and (e) as compared with the power of “control” in par 8(d).  In each Ordinance there is a clear distinction drawn between the powers of the Director.  In each case his or her powers differ.  Notwithstanding the commonalty of the derivatives of supervision, I am satisfied that the power of “control” in par 8(d) of the Welfare Ordinance was intended to give to the Director a power that was greater than a power of supervision and regulation.

157               In addition to these duties, the Regulations that were made under the Welfare Ordinance enabled the Director to make certain demands on the Superintendent of an institution.  For example, regulation 12 allowed the Director to require the Superintendent to make building alterations and additions for a hospital.  Under regulation 13, the Director could insist on the provision of a canteen or a store.  But none of those powers, extensive though they were, related to the day-to-day control of the institution.  This led the Commonwealth to submit that the sum total of the statutory powers meant that there was no day-to-day control over the running of the institutions and virtually no statutory power to interfere in the general management of an institution.  I consider that this submission did not reflect the true situation.  The guardianship of the Director, the Director’s duties of supervision and regulation, the licensing powers of the Administrator and huge funding assistance, when coupled together, meant the Director, the Administrator and the Commonwealth, in combination, were able to wield a substantial influence over the institutions.  That influence was so great that, in the final analysis, the Administration could have closed down an institution.

158               The Northern Territory Report for the period 1 July 1953 to 30 June 1955 discussed the changes that were to be brought about by the Welfare Ordinance.  In the first place, the new Welfare Branch of the Administration was made responsible, not only for those Aboriginal and part Aboriginal people who stood in need of special care and assistance, but also for welfare services generally for all sections of the community.  The report stated that the Commonwealth Government’s Aboriginal policy was one of assimilation and said that the legislative base for the carrying out of that policy was contained in the Welfare Ordinance, the passing of which, so it was claimed, “represented the most important single step yet taken in the approach to the aboriginal problem”.  The report explained that under s 8 of the Welfare Ordinance, the Director of Welfare had the specific duty in relation to the Aboriginal population “to promote their social, economic and political advancement for the purpose of assisting them and their descendants to take their place as members of the community of the Commonwealth”.  The report then stated that the Ordinance abandoned the merely “protective” approach of the Aboriginals Ordinance in favour of a positive “welfare” policy; it was also claimed that the new legislation abandoned the method of defining such terms as “aboriginal” and then making classes of persons covered by the definition subject to special legislation unless they obtain exemption from it.  The report said that the Ordinance assumed that Aboriginals, as well as other Australians in the Territory, have full citizenship as of right and that this right is to be withheld only in cases where an individual is in need of special care and assistance.

159               A useful and interesting summary of the effects of changes to the legislation in 1953 can be found in an article by Mr Jeremy Long “The Administration and the Part-Aboriginals of the Northern Territory” in Oceania 37(3) (1967) 186.  Mr Long was the former patrol officer with the Native Affairs Branch who gave evidence in the trial on behalf of the Commonwealth.  In his article, he noted that he used the terms “integration” and “assimilation” as roughly equivalent terms for the process by which a group of people becomes like and part of another group with a different culture.  He also used the terms to refer to policies and practices that have neither the intention nor the effect of segregating a minority group:  at 187; n3.

160               Under the heading of “The Assimilation Policy”, Mr Long wrote at 195-196:

“In January 1953 legislation was introduced in the Legislative Council in Darwin based on this approach.  The Aboriginals Ordinance was amended by removing all references to ‘half-castes’ and restricting the meaning of the term Aboriginal to include only ‘aboriginal natives of Australia’, and people with one Aboriginal parent who lived ‘after the manner of’ Aboriginals or who were under 18 and had been placed in the care of the Director of Native Affairs.  Provision was made for the declaration of part-Aboriginals who proved incapable of looking after themselves and the debate in the Council centred on safeguards against the arbitrary use of this power but in the event it was never used.  In practice these changes meant little for part-Aboriginals who lived in remote mission and settlement communities and for some on pastoral properties but for the part-Aboriginals of the towns of the Territory they meant real and unconditional legal equality.

These amendments were intended only as an interim measure until the new Welfare Ordinance, introduced at the same session of the Council could become law.  This Ordinance as originally presented omitted all reference to Aboriginals and provided for the proclamation by name of individuals who, because of their manner of living and needs, were to be declared ‘wards’ and would be subject to substantially similarly protective and restrictive provisions as Aboriginals and ‘half-castes’ had been under the Aboriginals Ordinance.  It was understood that only Aboriginals – ‘full-bloods’ – would be so declared but in response to the outraged protests of the members of the Council that the terms of the Ordinance itself provided no guarantee that whites would not be so declared, this intention was made explicit by providing that no person entitled to vote could be declared and Aboriginals were not then so entitled.  The Ordinance also, however, provided for the granting of relief and assistance to any indigent persons and thus provided legislative sanction for the relief of the needy without regard to race for the first time in the Territory.  For the newly emancipated part-Aboriginals this meant that help could be provided without affecting their status as citizens and without classifying them with the Aboriginals.

The Native Affairs Branch became the Welfare Branch and within this Branch a section was established to practise in social work in the general community, dealing with applications for relief, and with family and child welfare problems.  Part-Aboriginals found their problems being handled not by ‘Native Affairs’ but by the same people and in broadly the same ways as the problems of white people in the community.  Relics of the former policies remained.  For some years it remained the practice to persuade the Aboriginal parents of ‘half-caste’ children to consent to the removal of such children to institutions without any real examination of the reasons for separating the child from its parents.  It was repugnant to see an almost white child living among Aboriginals and this was reason enough to remove the child.  This practice has ceased.”

161               In his re-examination, Mr Long said that since writing that article, his archival research has indicated that in one section his language “may’ve been a little harsh”.  He said that he would not now say that it remained a practice to remove the children “without any real examination of the reasons for separating the child from its parents”.

162               The case for the applicants, as submitted by Ms Richards during the course of final submissions, was that, initially, there had been a policy which she called “the removal policy” or “the half-caste policy”.  It was submitted that it related only to half-caste children and was, as such, based on race; it was not concerned with welfare.  It was further submitted that “the assimilation policy” only really started in the 1950s and that it applied to both part Aboriginal and Aboriginal people.  I cannot agree with either of these propositions.  Although the word “assimilation” may not have become part of the vocabulary until the 1950s, the writings that I will identify show that “assimilation”, in the sense of integration, operated from the early days of the twentieth century.  Furthermore, integration of part Aboriginal children was not based on race; it was based on a sense of responsibility – perhaps misguided and paternalistic – for those children who had been deserted by their white fathers and who were living in tribal conditions with their Aboriginal mothers.  Care for those children was perceived to be best offered by affording them the opportunity of acquiring a western education so that they might then more easily be integrated into western society.  That sense of paternalism and that sense of care can be discerned in the decision of the High Court in the case of Namatjira v Raabe [1959] 100 CLR 664.  The question was whether a declaration that a man by the name of Henoch Raberaba was a ward under the Welfare Ordinance was void.  The appellant, Albert Namatjira, had been convicted of supplying liquor to a ward:  viz:–  Raberaba.  The argument was that Raberaba should have been given the opportunity to show cause why he should not be declared a ward before any such declaration was made.  The oral judgment of the Court was delivered by Dixon CJ who said at 669:

“When he becomes a ward he occupies a particular status.  It is a status which is so guarded that it is difficult to suppose that, if he really be a person who stands in need of special care and assistance, it would not operate to give him that care and assistance … Next it is proper to look at the background of the legislation.  It is quite apparent that it took the place of legislation which dealt in terms with the protection of aborigines.”

163               Dixon CJ discussed whether there was a need for consideration to be given to the individual circumstances of a person before he or she was declared a ward.  The learned Chief Justice noted that over 15,000 people had been declared wards at the same time.  The unsuccessful argument that had been advanced was to the effect that an opportunity should have been given to every individual, allowing him or her to show cause why he or she should not be declared a ward.  As to the proposal that a person should not be declared a ward, without first being heard, Dixon CJ conceded that “one might readily yield to the view that some such implication was proper, provided that there was no context to control or rebut the implication”:  at 668.  However, his Honour found the necessary rebuttal in the background to the legislation which he proceeded to describe as “legislation which dealt in terms with the protection of aborigines”:  at 669.  In those circumstances, the Court unanimously reached the view that the Welfare Ordinance did not require that each particular case should be dealt with individually.  Speaking for the Court, Dixon CJ said at 670:

“We think that the power does authorize the ‘block’ declaration that persons are wards within the Welfare Ordinance which was in fact made.”

The decision of the High Court in Namatjira v Raabe was referred to with apparent approval by both Toohey J (at 77) and Gummow J (at 151) in Kruger.

164               I believe that these decisions of the High Court have established that the Aboriginals Ordinance and the Welfare Ordinance are not to be regarded as examples of punitive legislation.  Rather, they were intended to be items of welfare or caring legislation.  That conclusion does not, however, address the further questions – how was the legislation implemented?  What policy or policies guided that implementation?  They are the questions that are central to this litigation.

Policy Issues

165               In resolving the issues in this case, there are two important factors that must be considered.  Although they are, to a degree, inter-related, they nevertheless require independent consideration.  The first of those factors is to inquire whether there ever was a policy of the Commonwealth that called for the removal of part Aboriginal children from their environment and their placement in homes, orphanages, missions or institutions.  If there was such a policy of removal and detention what was it?  Was it legislatively authorised?  In the course of that exercise it would also mean investigating how, why and when it was implemented.  If there was a particular policy of the Commonwealth that dealt with the subject of removal and detention of part Aboriginal children, the establishment of that policy as a matter of fact may – but not necessarily will – assist in determining the circumstances surrounding the removals and detentions of Mrs Cubillo and Mr Gunner.

166               The circumstances of their removals and detentions is the second factor; 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.

167               In a sense, it might be argued that the first factor does not fall to be decided in this case, even though the subject matter has permeated the evidence continuously.  It is open to argument that any removal of a part Aboriginal child could only have been implemented by strictly operating within the terms of the Aboriginals Ordinance.  Applying that argument, it would not matter whether the removing party had operated pursuant to some particular policy:  a good policy might have been beyond the ambit of the legislation:  an objectionable policy might have been within the legislation.  For example, much has been heard about the “policy of assimilation” but neither the 1918 Ordinance nor the Welfare Ordinance refer to any such policy by name.  The policy of the 1918 Ordinance when it was introduced was the care and well being of Aboriginal and part Aboriginal people.  The policy of the Welfare Ordinance was the care and well being of wards.  Arguably however, there were those who thought that the subject of assimilation was the best method of complying with the policies of the two Ordinances and subpar 8(a)(i) of the Welfare Ordinance and its objects of having wards “take their place as members of the community of the Commonwealth” is a clear invitation to adopt a policy of assimilation.

168               However, the applicants have pursued a submission that there was a policy of forced removal and detention of part Aboriginal children that did not take into consideration the interests of the children or their wishes or those of their families.  The primary allegation that both applicants made in their respective further amended statements of claim was that their removals and detentions by the Director of Native Affairs were “unlawful and beyond the power conferred by sections 6 and 16 of the Aboriginals Ordinance”.  Their alternative allegation was that they were detained by the Director of Native Affairs for a period beyond that authorised by law. In her pleadings, Mrs Cubillo pleaded that she had been detained at both the Phillip Creek Settlement and the Retta Dixon Home and the case was fought out on that twin premise.  In her final submissions however, the allegation that she was detained at Phillip Creek was not pursued.

169               If the evidence were to establish that the Commonwealth did, in fact, have such a policy of forced removal and detention, that circumstance would become relevant in considering the second factor:  that is, whether the removal and detention of Lorna Cubillo and Peter Gunner occurred in circumstances where they now have maintainable causes of action against the Commonwealth.  The existence of a particular policy could be relevant evidence in determining whether a particular removal and detention was in the best interests of a child who had been removed and detained.  Thus, for example, if it should be established that there was a blanket policy that all part Aboriginal children were to be removed and detained irrespective of their personal circumstances (and no such policy has been suggested) then the existence of such a policy would invite a prima facie finding that the removal of a child had been effected in circumstances where consideration had not been given to the personal interests of that child.

170               The applicants and the Commonwealth tendered numerous papers that had been obtained, in the main, as a result of archival searches.  These documents established that, as early as 1911, there were writings at the Commonwealth level directed towards the removal of part Aboriginal children from their mothers.  It will be necessary to set out selected extracts from these papers so that an attempt may be made to establish whether any, and if so, what formal policy existed on the subject and, if possible, the reasoning behind that policy.

171               The first of the documents to which reference should be made was a report dated 12 September 1911 from Mr FJ Mitchell, the Acting Administrator of the Northern Territory to the Minister for External Affairs.  After recommending that “all half-caste children who are living with aborigines” be gathered in, Mr Mitchell said:

“No doubt the mothers would object and there would probably be an outcry from well meaning people about depriving the mother of her child but the future of the children should I think outweigh all other considerations.”

This statement recognised three subjects which, in various permutations, can be regarded as three recurring problems.  The first of them is the removal of children without their mothers’ consent; the second is adverse community reaction; and the third is the placing of the child’s interests, as perceived by public servants, above all else.

172               Professor Baldwin Spencer, writing as the Chief Protector of Aboriginals in 1912 said:

“No half-caste children should be allowed to remain in any native camp, but they all should be withdrawn and placed on stations.  So far as practicable, this plan is now being adopted.  In some cases, when the child is very young, it must of necessity be accompanied by its mother, but in other cases, even though it may seem cruel to separate the mother and child, it is better to do so, when the mother is living, as is usually the case, in a native camp.”

The Professor had been commissioned a year earlier by the Commonwealth Government to compile a comprehensive report on the Aboriginal population of the Northern Territory.  For that purpose he was made a Special Commissioner with control of the newly established Northern Territory Aboriginals Department.  He was also appointed Chief Protector of Aboriginals for a term of one year.

173               Reports in 1913 and 1914 addressed the need to supply educational facilities for “the quadroons and half-castes”.  Discussing that subject in his report for the 1914-1915 financial year, the Administrator of the day wrote:

“Mr Becket, Inspector of Aboriginals, reports that there are several half-caste children in the southern districts that it will be necessary to have brought under the same jurisdiction.  Consequently, steps will be taken to enlarge the accommodation which is already inadequate.”

This entrenched paternalism, which many would say was misguided, also appeared in the report of that time from the local Darwin Headmaster:

“I am convinced that the younger the half-caste children are removed from the contaminating influences of the native camps and introduced into the compound at Kahlin Beach and the aboriginal school, with their civilization and discipline, the speedier their progress will be and the better their chances of becoming useful members of the community of the Northern Territory.”

This statement showed that the author took it for granted that in all cases there were “contaminating influences” in “the native camps”.  No consideration was given to, nor was any allowance made for the human bond that would have existed between mother and child or for the enjoyment and happiness that the child experienced from his or her environment.

174               A report in 1922 from the Administrator to the Commonwealth Minister shows that the senior members of the Government were still wrestling with the “problem of the part Aboriginal”.  The Administrator’s report suggests that, at that time, no official policy had been formulated.  The Administrator wrote:

“The solution depends to some extent on the general policy to be adopted towards them whether they are to be allowed to remain at the developmental stage of their coloured parentage and so gradually form a kind of helot class which will continue for a few generations and then disappear as it is presumed they have done in the older and more settled States or whether an attempt is to be made to raise them to the status of their white parents with the view to their eventual absorption in the white population.

For the purpose of this report I assume that the latter rather than the former policy would be the one favoured by the Government, and we are thus brought to the consideration of the best means of giving effect to it.”

Although the word “assimilation” was not used in the Administrator’s report, the expression “eventual absorption in the white population” can only mean a form of assimilation.  This report is another example of an author taking for granted an issue that was clearly susceptible to challenge.  By what right did he assume that raising the part Aboriginal children “to the status of their white parents” would be in their best interests?

175               The position did not seem to alter in the ensuing twelve months for in his next annual report the Administrator noted:

“… I made recommendations in July, 1922, which would, I believe, if adopted, have been very beneficial, but I understand it was considered that further expert advice was desired in the matter, and that action has been deferred pending the receipt of it.”

Despite what might have been happening to part Aboriginal children at this time, it is clear from these last two reports from the Administrator that he did not consider that there was then in force any recognised policy with respect to the removal of part Aboriginal children from their families.

176               An interesting insight into the attitude of “superiority” towards the Aboriginal race may be gleaned from the contents of a letter that was written in August 1927 by the Prime Minister of the day to the Premier of South Australia.  He said:

“There are also at the Home at Alice Springs a number of quadroons and octoroons under five years of age who could hardly be distinguished from ordinary white children.  My colleague [the Minister for Home and Territories] is assured that, if these babies were removed, at their present early age, from their present environment to homes in South Australia, they would not know in later life that they had aboriginal blood and would probably be absorbed into the white population and become useful citizens.”

The views of the South Australian Premier were also of interest.  In rejecting the Prime Minister’s suggestion that South Australia should take over responsibility for some of these children he wrote:

“To give effect to the suggestion of the Minister that quadroons and octoroons under 5 years of age should be transferred from Central Australia to this State would be greatly to the disadvantage of South Australia, as it would be increasing an undesirable element in the population.”

177               In 1927, Doctor Cecil Cook was appointed the Chief Protector of Aboriginals and the medical officer for the Territory.  He played a very influential part in shaping the Aboriginal policy for the next eleven years.

178               In 1928 Mr JW Bleakley was appointed by the Commonwealth to conduct a special inquiry into Aboriginal matters in Central and North Australia.  Prior to his appointment, he had been the Chief Protector of Aboriginals in Queensland.  On 16 January 1929 he presented his report to the Prime Minister.  In outlining the current situation in the Half-Caste Home in Darwin, Mr Bleakley wrote:

“As a result of the policy in the past of rescuing half-caste children from the camps and sending them to a home for care and education, there are now 76 of these people in the home at Darwin …

Females number 56 and males 20, as a result, apparently, of the practice of not removing the young males if the Protector is satisfied they are being looked after on the stations.  As these young half-castes make useful station labour at an early age, the employers are reluctant to part with them.”

179               The concept of “rescuing” the children does not immediately reconcile with the employers’ reluctance to part with them, but there was, in this statement, an indication that the personal circumstances of some (at least) of the children were the subject of individual consideration – even if that consideration was melded to the interests of the employers.  His report also contained references, in general terms, to the welfare of the individual for he wrote:

“The object of the home is to save these half-castes from the degradation of the blacks’ camp, properly care for and educate them, and fit them to take a useful part in the development of the Territory.”

Mr Bleakely then outlined the policy that he considered would be necessary to solve this “problem”:

“A definite policy, framed upon understanding the peculiar position and characteristics of the half-castes, and aiming at what is likely to be best for their future happiness and usefulness, should be formulated.  Rescued from the camps and given opportunity for education and vocational training, they can be made an asset to the Territory.  Left in their present position, they are more likely to be a menace, and, with what is an even more deplorable result, the increase of the quadroon element.  All half-castes of illegitimate birth, whether male or female, should be rescued from the camps, whether station or bush, and placed in institutions for care and training.  Even where these children are acknowledged and being maintained by the putative fathers, their admission to an approved institution for education should be insisted upon.  The education should be simple in nature, but aimed at making them intelligent workmen and fitting them to protect themselves in business dealings.  The vocational training for the boys should be in the trades already mentioned, as necessary for skilled station work, and for the girls, the domestic arts to make them not only good servants but capable housewives.  On completion of their training, those recommended as suitable for outside employment should be transferred to the control of the Chief Protector, who would satisfactorily place them and exercise supervision as long as might be necessary.”

180               It was his view that the Government should surrender the responsibility for this education to the missions.  The use by Mr Bleakley of the term “all half-castes of illegitimate birth” shows that he was advocating a general or a blanket policy with respect to that group but it could not be said that his was an uncaring policy.  It is plain that he personally considered that each child who was a “half-caste of illegitimate birth” living in a camp would be better off by being placed in an institution.  It is interesting to note that he was so confident of his personal views that he did not even take time to consider how the child and the child’s family might react to his proposal.  Isolating the words of significance from the quoted passage, it is not unreasonable to summarise his view as one where “rescue” brings “care” and “education” and with that comes “happiness” and “usefulness”.

181               In April 1929, the Commonwealth Minister for Home Affairs convened a conference of the representatives of missions, societies and associations who were interested in the welfare of Aboriginals, to consider the Bleakley Report.  The conference approved the policy recommended by Mr Bleakley in relation to “half-castes”.  However, there was not unanimous support for his recommendations.  Dr Cook, the Chief Protector of Aboriginals, disagreed, claiming that schemes of segregation disadvantaged the Aboriginals’ freedom and removed “the source of cheap labour from struggling pastoralists”.  Dr Cook, who was supported by the Government Resident of North Australia, has been reported as saying:

“In North Australia the policy has been to endeavour to save the white element in the half-caste from further dilution and to encourage the half-caste to qualify for and accept the duties of citizenship.  So far from regarding the quadroon, as Mr Bleakley does as a menace even more deplorable, considerable care has been exercised in raising these delicate children, with a view to their future availability in the total breeding out of colour.”

182               If Dr Cook was correct in stating the existence of such a policy, primary documents establishing its existence have not been produced.  The Department of Home Affairs submitted a report containing summaries of Mr Bleakley’s recommendations and Dr Cook’s comments.  In some areas, it favoured the recommendations in the Bleakley Report, but in a critical area, it rejected Mr Bleakley’s proposal:  in a Ministerial Press Release dated 14 July 1930 it was announced that the Government had decided to retain “the control and education of the half-castes by the Administration”.  In relation to “half-castes, quadroons and octoroons”, the Government expressed in that Press Release general agreement with Mr Bleakley’s recommendations under this heading, and continued:

“General approval has been given to Mr Bleakley’s recommendations regarding the collection and education of half-castes.  It is considered, however, that the responsibility for such education should rest with the Government and not with the Missions.”

The presence of the words “the collection and education of half-castes” could point to the implementation of, if not the continuance of, a practice of bringing in young part Aboriginal children – ostensibly because it was considered to be in the best interests of the children to do so.

183               In 1931 the Secretary of the Prime Minister’s Department wrote to a Mr AN Brown.  Mr Brown was the “Honorary Secretary” of some organisation, the name of which has been obliterated in the photocopying process.  The letter commenced with the following paragraph:

“With reference to your letter of the 12th June asking for certain information regarding the care of aboriginals in the Commonwealth, I forward herewith copy of a statement setting out the policy of the Commonwealth Government in respect of aboriginals in the Territories under its control.”

That statement of policy is a twenty-four page document and, as may be imagined, it descends into substantial detail.  Before discussing the contents of the statement, it will be useful to quote a further sentence from the letter from the Prime Minister’s Secretary:

“In framing its aboriginal policy, the Government’s main objectives have been the welfare of the natives and their general advancement.”

184               The statement of policy covered numerous aspects of Aboriginal life that need not be discussed in these reasons.  Important as they were to the general welfare of the Aboriginal population, it is not necessary to have regard to the details of medical officers who were then employed in matters of Aboriginal health, to the details of control over Aboriginal employment, to the Government’s policy on nomadic tribes and Reserves for Aboriginals and the treatment of Aboriginal prisoners.  The section in the statement under the heading “Half‑Castes” is, however, important.  Although this statement predated Mrs Cubillo’s removal to the Retta Dixon Home by some sixteen years, it nevertheless represents a clearly identified base from which an examination of the Commonwealth’s policy in respect of the treatment of part Aboriginal children can commence.  For that reason, the section dealing with “Half-Castes” is set out hereunder:

“Half-castes.

There are two homes for half-castes, one in Darwin and one in Central Australia (at present temporarily situated at Jay Creek near Alice Springs).

Plans had been prepared for the erection of new homes at Darwin and in Central Australia, but the matter was held up pending consideration being given to Mr. Bleakley’s suggestions regarding the future policy to be adopted in connection with half-castes.

In effect, Mr. Bleakley recommended that the crossbreeds with a preponderance of European blood should be transferred to European institutions, and that those with a preponderance of aboriginal blood should be transferred to the Missions.

The Government has given very careful consideration to this recommendation, but has not adopted it, as it feels that the responsibility for the training and welfare of half-castes is one which should be retained by the Government and should not be transferred to other authorities.

The new home for half-castes in Darwin cannot be proceeded with at present as funds are not available.

The home at Jay Creek, Central Australia, is of a purely temporary nature.  The greatest difficulty has been experienced in securing a site for the erection of the new home.  The most suitable site is that at Temple Bar, but boring operations for water have not to date resulted in securing the quantity considered necessary.  As an alternative to this site, the Telegraph Station, about two miles from Alice Springs may be converted into a home for half‑castes.  This site will be quite available and alterations to the existing buildings can be readily carried out.

The Chief Protector of Aboriginals is the legal guardian of every half-caste child until the child reaches the age of 18 years.  Every Protector is, within his district, the local guardian of such children.

As a matter of practice, the Chief Protector assumes control of the estates of half-castes recurrently appearing in the Debts Court.  All claims on half-castes require to be lodged with the Chief Protector who also receives all payments of wages etc. due.  All debts are paid off by the Chief Protector, who also ensures that a certain amount is retained in each account for saving.

The Aboriginals Ordinance provides that no marriage of a female aboriginal (or half-caste) with any person other than an aboriginal (or half-caste) shall be celebrated without the permission, in writing, of a Protector authorised by the Government Resident to grant permission in such cases.  In practice, no permission is granted for a white or a half-caste to marry an aboriginal woman.  Half-caste males and, where possible, Europeans, are encouraged to marry half-caste girls.  Half-caste girls are encouraged to marry whites approved by the Chief Protector.

Both parties to every marriage are medically examined for venereal disease, tuberculosis, leprosy and other diseases before permission is granted.

In the case of a white or a half-caste marrying a half-caste girl, the husband is required to contribute, for at least 12 months, to the medical benefit fund of the Territory, so that the wife may have the best available medical attention in maternity and other conditions, and to ensure continued medical supervision of the offspring.

Half-caste girls are brought into the homes as soon as possible after reaching an age when they can be separated from their native mothers.  They are reared and educated under constant medical supervision.  After completion of schooling, the girls are taught domestic work, sewing and the making of clothes for themselves and shirts and trousers for men.

When proficient, these girls are released for employment in approved homes under strict conditions regarding general treatment, preservation of morality and general training as citizens.  In some cases, permission is granted for the girls to be engaged in employment under agreement with approved persons residing outside the Territory.  In such cases, arrangements are made with the State aboriginal authorities for periodical inspection.  A portion of the wages earned by the girls is paid into Savings Bank Accounts and is not permitted to be withdrawn except by authority of the Chief Protector.

The Chief Protector of Aboriginals of North Australia states that his experience of this system indicates that the view commonly held that the half‑caste girl is naturally immoral is unjustified.  None of the girls released under the system has so far failed to conduct herself properly.

The training given to the male half-castes is of a utilitarian nature, and such as will make him useful in occupations which he can follow in the Territory.  It is realised that it is of no avail to teach these boys and train them in callings which do not enter into the ordinary life of the community in North Australia and Central Australia.

Regulations governing the conditions of employment of half-caste apprentices in town districts are in force.  Regulations to govern conditions of employment in country districts have been prepared and will be promulgated at an early date.”

185               The statement of policy concluded with an assurance that the Commonwealth:

“… realises that it has a duty to perform to the aboriginal races of the Territories under its jurisdiction.”

186               The matters in the section on “Half-Castes” in the statement of policy that I regard as important for the purposes of these reasons are:

·                 the statement that the Government felt that the responsibility for the training and welfare of half-castes was one which should be retained by the Government;

·                 the reaffirmation that the Chief Protector was the legal guardian and had control of the person and property of the half-castes;

·                 the policy of bringing in half-caste girls at an early age without reference to any consensual arrangements with their families; and

·                 the reference to a “utilitarian” training for male half-castes but without any reference to them being brought in.

187               In October 1932, the policy of removal of “half-caste” children received critical media attention.  As a result, on 21 October 1932, the Minister for the Interior issued the following press statement:

“Referring today to the statement in the press regarding half-caste children being taken from their Aboriginal mothers and sent to Darwin, the Minister for the Interior (Honourable J.A. Perkins) stated that it had been the practice for a number of years for the Chief Protector of Aboriginals in the Northern Territory to remove half-caste children from aboriginal camps and take them to the half-caste homes at Darwin and Alice Springs.

At the Homes these children are educated and trained with a view to enable them to take their places in the industrial life of the Territory.

On reaching the age of 21 years, a half-caste has the full rights of citizenship.  It is desirable, therefore, that he should be educated in such a manner as to enable him to qualify for that privilege.

If left in the camps, the half-caste is reared as an aboriginal, and on attaining the age of 21 years he is socially and industrially no more and no less than an aboriginal native except that he is entitled to vote as a white man.  Reared under such conditions the half caste is an outcast, not wanted by either the aboriginals or the whites.

Mr Perkins added that no appeal had been received by him against the action of the administration in removing the half-caste children in question from their aboriginal mothers.”

The press release was published in full in the Canberra Times.  It was silent on the question of the mother’s consent.  To say that there had been no appeal from a mother is not to the point.  On the other hand, the emphasis on education and the alleged benefits to be derived from education is apparent.

188               In a report on the Northern Territory by Mr JA Carrodus, the Secretary of the Department of the Interior, dated 20 November 1934, which was submitted to the Minister for his consideration, it was stated that the policy of the Administration was:

“… to collect all half-castes from the native camps at an early age and transfer them to the Government Institutions at Darwin and Alice Springs.”

 

The report continued:

“All these children are given an elementary education by trained teachers.  The girls, when old enough, also receive instruction in domestic economy, but they are not trained domestics by the time they leave the Home because, usually, they are sent out to employment shortly after they reach the age of 14 years and their subsequent training is given them by their employers.

It would be a boon to the women of the Territory, if they could apply for and obtain fully trained half-caste domestics whenever required.  The training most desired is in cooking and laundry work.”

189               The official attitude of the Commonwealth remained.  In June 1935 the Department of the Interior prepared a ministerial reply to an inquiry from the Anti-Slavery and Aborigines Protection Society in London.  The reply said in part:

“The Society expresses the view that half-castes should be advanced to the standard of the white, instead of being thrust back to the misery and degradation of the aboriginal.  In this regard, the policy of the Commonwealth Government is in complete accord with the views of the Society.

In the Northern Territory half-castes are collected at an early age from the aboriginal camps, and taken to institutions where they are educated by trained teachers and subsequently given technical instruction.  The girls are trained in domestic economy and, when old enough, placed under agreement with approved employers as domestic servants.  The boys are trained in matters likely to assist them in obtaining employment in the Territory, principally in connection with the pastoral industry.  The majority of them are apprenticed to approved pastoralists.”

190               The initial Conference of Commonwealth and State Aboriginal Authorities was held at Canberra on 21 to 23 April 1937; it was opened by the Commonwealth Minister for the Interior, the Hon Mr T Paterson.  The Commonwealth was represented by Mr JA Carrodus, and by Dr Cecil Cook.  All of the mainland States were represented at the Conference.  The Conference affirmed the approach taken by the Commonwealth in the Northern Territory to “the Half-caste Problem” by the following resolutions:

“That this conference believes that the destiny of the natives of aboriginal origin, but not of the full blood, lies in their ultimate absorption by the people of the Commonwealth and it therefore recommends that all efforts be directed to that end.

That … efforts of all State authorities should be directed towards the education of children of mixed aboriginal blood at white standards, and their subsequent employment under the same conditions as whites with a view to their taking their place in the white community on an equal footing with the whites.”

Once more the concept of “absorption” or, as I would have it, “assimilation”, has surfaced at a very senior level.  Once more, no regard was shown for the personal feelings of human beings whose children were to be taken from them.

The McEwen Policy of 1939

191               In February 1939, the Minister for the Interior, the Hon J McEwen issued a statement that had earlier been approved by Cabinet entitled “Commonwealth Government’s Policy with respect to Aboriginals” (“the McEwen policy”).  The Minister commenced with the observation:

“Hitherto the aboriginal policy appears to  have been one of merely dealing with the physical needs of the natives as the needs become apparent.”

He later went on to say:

“I have approached this problem of an aboriginal policy with the intention of endeavouring to reverse the attitude that has been adopted up to the present, so that instead of waiting for the need for some care or service to become apparent, the Government will establish for its own guidance some final objective and frame all its policy and action towards the reaching of that objective.”

192               The Minister differentiated between children “born in wedlock of half-caste parents” and “those born of an aboriginal mother and a non-aboriginal father”.  Of the former he said that they were “usually cared for by their parents in the same manner as the children of whites”.  However, as to the second group, the Minister said that they were: “the responsibility of the administration”.  The Minister’s statement continued:

“For the half-castes who are the responsibility of the administration, there will be government institutions where, up to a certain age, the children of both sexes will be given the care necessary for young children and certain elementary education.  Later they will go to separate institutions for each sex.  Those who show outstanding ability will be carried on in ordinary educational subjects, but the bulk of them will be trained in some useful occupations.  The girls will be trained in domestic service, cooking, sewing, and a limited number, perhaps, in typing and stenography.  The boys will be trained in station work and occupations such as horse-shoeing, elementary bush carpentry, elementary mechanics, &c., so that those who prove adaptable will be able to work amongst windmills, motor cars and so on.  They will provide a source from which pastoralists will become accustomed to recruit their junior station labour.”

193               Under the heading “New Organisation” the Minister stated:

“The policy which has been evolved is to create a separate Branch of Native Affairs in the Northern Territory, thus divorcing the aboriginal work from that of the Medical Service.  The Native Affairs Branch will be placed under the control of an officer, with administrative ability and training in practical anthropology, who will function as Director of Native Affairs.”

194               In formulating his policy, Minister McEwen consulted Professor Elkin and sought advice from him – not from Dr Cook – which gave some indication about the major changes that were to be made to the administrative personnel and structure of the Department.  Professor AP Elkin had been appointed in 1933 to the newly established Chair of Anthropology at Sydney University.  During the early 1920s, he had studied Aboriginal cultures in the north west, central and southern parts of the continent and had been “a prime mover in New South Wales for the establishment of an assimilation policy”.  In addition, he lectured patrol officers and acted as an adviser to Governments and other bodies on Aboriginal welfare matters.  He died in 1979.

195               Mr EWP Chinnery, who had been seconded from his position in the Australian Protectorate of New Guinea, arrived in Darwin to take up duty as Director of Native Affairs on 18 April 1939.  His appointment followed the change in the administrative structure of the Northern Territory Administration as indicated in the Minister’s statement.  One aspect of that change was the abolition of the office of Chief Protector and the establishment of the Statutory Office of Director of Native Affairs.  Dr Cook retired at about the same time as the announcement of Mr Chinnery’s appointment.  The first members of the staff of the newly established Native Affairs Branch were the secretary, Mr VJ White and Messrs TGH Strehlow and Gordon Sweeney who were appointed patrol officers.  Mr Strehlow, in later life, achieved fame as Professor Strehlow, noted as a linguist and anthropologist and for his contributions to the debate on whether the Australian legal system should recognise and enforce Aboriginal customary laws.  Mr Sweeney was a graduate of Civil Engineering of the University of Adelaide and possessed a First Class Diploma from the Roseworthy Agricultural College, South Australia.  Prior to his appointment as a patrol officer in 1939 he had worked as a lay missionary in charge of the Methodist Mission at Goulburn Island.  Both these remarkable men are dead as are Mr Chinnery, Mr White and Dr Cook.

196               At about the same time, the Commonwealth also shifted towards the use of missions to supplement and assist in the care of part Aboriginals that had earlier been carried out by Government institutions.  In his report to the Administrator dated 18 January 1940, Mr Chinnery discussed the placement of part Aboriginal children.  He did not question the policy of removal; he only weighed the competing advantages and disadvantages of Government institutions and religious missions.  He concluded:

“After carefully considering the question, and after discussing the future of these part-aboriginal children with the various Missions, I have come to the conclusion that the Missions should be offered financial assistance and annual subsidies to take over the future training of all part aboriginal children in suitable places remote from the towns.

I feel confident that given the necessary financial assistance to provide buildings, equipment and staff, and an annual sum, substantially less than the present cost to the Government, the Missions would agree to take over the children at present in the Institutions of Alice Springs and Darwin, and provide adequately for their training and preparation.”

What ultimately followed was the establishment by the Catholic Church of the Garden Point Mission at Melville Island and the establishment by the Methodist Church of its Mission on Croker Island.

197               The Government accepted Mr Chinnery’s proposal and, despite the onset of World War II, the Commonwealth proceeded with its implementation.  In a press release that was issued on 3 December 1940, the Minister of the Interior said that:

“… the Native Affairs Branch, which had been created in February 1939, was making every effort to implement rapidly the Government’s long-range aboriginal policy.  One of the objects of this policy was the transference of the half-caste children from the Government institutions to the missions, away from the towns and settlements.”

198               On 19 February 1942, the Japanese bombed Darwin; it was the first of sixty-four air raids.  The consequences of the war arriving on Australia’s front door were catastrophic for the civilian population.  Schooling ceased; missions evacuated children.  Those from Garden Point went to Carrieton in South Australia; those from Croker Island went to Oxford in New South Wales and the part Aboriginal children from Groote Eylandt went to Mulgoa in New South Wales.  Miss Shankelton, who had not long arrived in Darwin, took charge of the evacuation of some part Aboriginal children to Balaklava in South Australia.  As a consequence of the war, the Northern Territory came under Army rule and it was not until July 1945 that civilian control was re-established.

199               In 1942 Sir Paul Hasluck published his work Black Australians, Melbourne University Press, 1942.  It was an historical work on the treatment of Aboriginals in Western Australia to 1900.  In his epilogue, he was critical of the 1937 conference resolution that provided for the maintenance of the “uncivilised native in his normal tribal state”, without making provision for his educational and vocational training:  at 205.  Sir Paul advocated that type of training to better equip the Aboriginal to participate in the general Australian community.

200               The extracts from the documents that have thus far been identified are sufficient, in my opinion, to justify a conclusion 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.  The material is not sufficient to sustain a finding that this policy applied to all part Aboriginal children.  On the contrary, it would seem that it did not have such a general application.  The probabilities are that the policy was intended for those illegitimate part Aboriginal children who were living in tribal conditions whose mother was a full blood Aborigine and whose father was a white man.  The Commonwealth, in its final submissions, claimed that it cannot be determined whether the policy was consensual or forced, and if it was forced, the extent to which that was so and was justified by normal welfare considerations.  I agree that words to that effect are not to be found in the writings that were tendered in evidence.  But there are two comments that must be made in respect of that submission.  The first is that there were no words in the written material that would have prevented non-consensual removals.  The second is that Aboriginal people would not have been concerned with the formalism of a Government policy.  What would have concerned them would have been the practical implementation of that policy by patrol officers at the grass roots level.

201               By the time of the removal of the children from Phillip Creek in 1947 to the Retta Dixon Home, a perceptible change in attitude to the policy of removing part Aboriginal children from their families had started to develop.  The need to obtain the family’s consent was beginning to be openly discussed.  On 7 February 1946, Mr Chinnery submitted a report to the Administrator.  After quoting the powers of the Director under s 6 of the 1918 Ordinance, Mr Chinnery wrote:

“In my opinion children should not be removed against the wishes of their parents except by Order of a Court, or if a Court is not practicable, by Order of the Director of Native Affairs after consideration of all the circumstances and discussion with the parents or native guardians of the children concerned.”

To emphasise his commitment, Mr Chinnery went on to add that he would be agreeable to an amendment to the Ordinance to accommodate his recommendation.  The Administrator, Mr Abbott, wrote the secretary, Department of the Interior on 12 February 1946, quoting the text of Mr Chinnery’s recommendation and adding his personal endorsement:

“I agree with Mr Chinnery that action of this kind should not be taken without the direct approval of the Director of Native Affairs.  In my experience, action has only been taken when the child’s life is at stake through negligence or other causes, and I do not know of any children at present who have been removed.”

202               With the advent of the Second World War, little, if anything, had been published about matters of policy.  That was confirmed in a Ministerial Statement that was published on 25 October 1946 by the Minister for the Interior, Mr Johnson only eight months after the correspondence from Messrs Chinnery and Abbott.  Significantly, the subject of family consent was not addressed.  The Minister said that the Government’s policy for “the welfare of natives” in the Northern Territory had been formulated before the war but that it had not been possible to implement that policy during the period of the war.  The Minister proceeded to summarise the Government’s policy without making any reference to the removal of part Aboriginal children.  The statement then continued by making reference to the policy in relation to different groups, one of which was “children being educated by mission organisations, financially endowed by the Government”.  In referring to that group, the Minister said:

“Boarding schools conducted by missions in the north and south with Government assistance; the training and preparation of children, inspections by women protectors and educational officers; and preparation for adult life, employment in industry throughout the territory or settlement on the land.”

203               Although the Minister made no reference to the McEwen policy, nothing of importance was disclosed in evidence as having emerged during the intervening war years.  It would seem therefore that the policy to which Mr Johnson was referring in 1946 was the McEwen policy of 1939.

204               A conference between the Administration and pastoralists took place at Alice Springs at which an attempt was made to impose a standard rate of pay for Aboriginal employees.  The Minister deferred implementation until the pastoralists indicated their acceptance.  The conference was an initiative of Director Moy and eventually regulations were made which implemented its proposals.  Supervision of the regulations became the main task of patrol officers.  A conference took place in Melbourne under the auspices of the Department of Reconstruction and Training to consider vocational training of Aboriginals.  The conference was chaired by Professor Elkin; Directors of Native Affairs from the Territory, Western Australia, Queensland and South Australia attended.  One item for discussion was the means by which Aborigines could be fitted into the white economy through State and mission schools.  Professor Elkin pressed the view that all Aboriginal children should be educated.  It was resolved that should be done, the aim being to fit them for the ordinary avocations of life.  In his 1946-1947 annual report Administrator Driver endorsed “the absorption of part Aboriginal children in our public schools”.

205               On 3 February 1948, a conference of Commonwealth and State Aboriginal Affairs Authorities was held in Canberra.  Minister Johnson said that Director Moy had been appointed to the Territory to give effect to Government policy “whereby we insist that the native as far as possible will be helped and trained in every way to fit him for usefulness in the future”.


The Wave Hill incident and the Leydin Report

206               One of the most distressing incidents that occurred during the long course of this trial was to read the reports of two men; both of them are now dead and are unable to give the Court the assistance that might have been derived from their oral evidence.  The first of them was Mr Ted Evans and the other was Mr RS Leydin, who in 1949 and 1950, was the Government Secretary.

207               Mr Evans submitted a report dated 23 December 1949 to the Acting Director of Native Affairs; it was entitled:

“Report on Patrol of Wave Hill – Timber Creek Areas.”

The first section of this report dealt with various inspections and inquiries that Mr Evans had made at different stations; he then moved to a section of his report entitled:

“Movement of Part Aboriginal Children.”

The opening sentence was, in my opinion, significant in several respects.  It read:

“Only five part-aboriginal children of those listed by you in your memorandum dated 26th August, 1949, were removed by me.”

Mr Evans then listed the names and ages of five children who were all removed from Wave Hill.  Following that, he listed the other children, together with his reasons for not removing them.  In the first place, Mr Evans’ reference to the Acting Director’s memorandum (which was not produced) showed that the act of removal was not an ad hoc decision by a patrol officer:  the removal had been carried out pursuant to a direction of a superior officer.  In the second place, it showed that the identities of the children were known to the superior officer in advance of the decision to remove them.  This therefore meant that, by some unknown source, information had been gathered about these children and passed back to the superior officer.  Unfortunately, that is where the trail ends; it is not possible to state what information was gathered or what reasoning process lead to the decision to instruct Mr Evans to remove the children.  This gap typifies the difficulties that the parties have had to face in preparing this case for trial.  In turn, it typifies the difficulties that now confront the Court in its endeavours to make findings of fact.  Before coming to the section in Mr Evans’ report that is so distressing, it is of interest to note what he also wrote about the children who were not brought in.  One was said to have died and two were listed as “absent”.  Another, who was listed as “absent”, was the subject of a promise by a police officer that he would “hold” the boy for Mr Evans’ next visit.  Two others had been “removed” by another police officer.  The report about David from Waterloo Station is, however, the most interesting:

“Hidden by his mother who had received advice of my intentions from Wave Hill.  She has promised to hand him over next year.”

Mr Evans then described the scene at Wave Hill when the five children were taken away by aeroplane:

“Comment.  The removal of the children from Wave Hill by MacRobertson Miller aircraft was accompanied by distressing scenes the like of which I wish never to experience again.  The engines of the ‘plane are not stopped at Wave Hill and the noise combined with the strangeness of an aircraft only accentuated  the grief and fear of the children, resulting in near-hysteria in two of them.  I am quite convinced that news of my action at Wave Hill preceded me to the other stations, resulting in the children being taken away prior to my arrival.

I endeavoured to assuage the grief of the mothers by taking photographs of each of the children prior to their departure and these have been distributed among them.  Also a dress length each was given the five mothers.  Gifts of sweets to the children helped to break down a lot of their fear and I feel that removal by vehicle would have been effected without any fuss.”

This passage can only evoke the highest emotions of sympathy both for the mothers and the children; indeed, some might even be able to spare a thought for the poor patrol officer who was the instrument of such grief.  Mr Evans’ report came to the attention of Mr Leydin; he wrote the Administrator, quoting sections from Mr Evans’ report including the one that is set out above.  He said in his memorandum that he was assured by the Acting Director of Native Affairs that the contents of Mr Evans’ report represented “the practice of removing half-caste children from their aboriginal mothers to Darwin or some other suitable centre for care and education”.

208               Mr Leydin then informed the Administrator in the strongest possible terms:

“I cannot imagine any practice which is more likely to involve the Government in criticism for violation of the present day conception of ‘human rights’.  Apart from that aspect of the matter, I go further and say that superficially, at least, it is difficult to imagine any practice which is more likely to outrage the feelings of the average observer.

It is not questioned that adequate legal power resides in the Director to take aboriginal and part-aboriginal children into custody in their own interests.  The Aboriginal Ordinance provides that he is the legal guardian whether a parent exists or not.

If children, however, are to be forcibly taken from their mothers despite what Mr. Evans calls distressing scenes which he hopes never to experience again, it is of the greatest importance that the Minister’s approval of such a policy can be readily stated, and further that the administration of such a policy can be shown to be just and considerate.”

209               In the social furore that has erupted over “the Stolen Generation”, little, if any, recognition has been given to the compassion and courage of those, such as Mr Evans and Mr Leydin, who were prepared, openly and officially, to express their concerns for the part Aboriginal children and their families.  However, the correspondence from Mr Evans and Mr Leydin leaves unanswered many questions.  Was it the strangeness of the aeroplane that caused the distressing scene?  After all, Mr Evans wrote that “removal by vehicle would have been effected without any fuss”.  That seems highly unlikely when a study is made of Mr Leydin’s letter – unless, of course, he misinterpreted Mr Evans’ report.

210               The manner in which Mr Leydin couched his letter is also open to an interpretation that he was hearing about force being used for the first time, for he was advocating, in the strongest terms, that the Minister’s approval should be obtained and that the administration of any such policy should be shown to be “just and considerate”.

211               Although it was his view that the removal of the Wave Hill children would have caused distress, Mr Milliken said, during the course of his cross-examination, that it was his understanding of this incident that the author was inferring that the distress was caused by the use of the aeroplane which, with its noise, was presumably unknown and frightening to the children.  No doubt that would have contributed to their alarm, but I am satisfied that it only played an exacerbating part in the frightening distress that they suffered when, as would appear from the report of Mr Leydin, they were forcibly removed from their mothers.

212               A powerful and emotional example of dissent was brought out during the cross-examinations of Messrs Penhall and Lovegrove when an extract from Charlie Schulz’s book was read to them.  The late Charlie Schulz ran Humbert River Station in the Victoria River Downs district.  He published his memoirs in a book co-authored by Darrell Lewis, called Beyond the Big Run, University of Queensland Press, Qld, 1995.  At page 146-7, he told of an incident that he witnessed involving the removal of two children from their mother:

“A law came in that all the half-caste kids had to be taken away from their mothers and taken up to Darwin.  Well you never heard of such a ridiculous law in your life.  It was the saddest thing I ever saw – little kids dragged away from their mothers.  You picture, any of you, anyone that’s got family now, a policeman coming along when your kids are only six and seven years old and dragging them away from you.  Can you imagine how they’d scream, and the turn they’d put on when they’re taken away from their mother?

I was involved in such a case at [Victoria River Downs] one day when I came over to catch the mail plane.  That particular plane was flying straight through to Darwin and when I was on the airstrip I saw these two kids there, hanging to their mothers.  Their blackfella fathers were there too.

At last the plane was ready to go.  The pilot sat up in the seat and I hopped in, and the next minute a policeman was there, a fella by the name of Jack Potts.  He brought the kids over to the plane and they took fright then.  He grabbed one and when he went to put it in, it hung onto its mother.  I admired the lubra.  She turned round and she grabbed one and she kept on saying to him, ‘Don’t you worry, you’re all right, you go to Darwin and learn lessons.’  You could see it was against her will that she was doing all this.

I was sitting up in the middle of the plane and didn’t want anything to do with it.  The pilot didn’t want to get involved either.  He just sat there all the time while this shivoo was going on.  The mother grabbed her kid and got up in the plane.  Potts brought in the other one, a little boy, but when the little girl’s mother went to jump out of the plane the kids followed her down, and went to jump out too.  She turned round to me and said, ‘You hold’im boss, you hold’im.’  God, I didn’t want anything to do with it.  It had nothing to do with me.  Then the little girl took a half-hitch around her mother’s hair.  She got one finger wound around it, and I’m damned if the mother could get away from her.

Christ, I’ll never forget that until my dying day.  I said to Potts, ‘Why don’t you let the poor little buggers alone?  Let them go!’  He said, ‘Oh I might lose me job.’  ‘Yeah,’ I said, ‘your job’ll be all right.  There’d be too big a stink go up if you did your bloody job over that!’  I don’t know whether he just wanted to be a dinkum policeman or what – the bastard was howling himself!  I’ll never forget that you know, crying him-bloody-self!  And if I wasn’t crying I wasn’t far from it.” 

The book was not received into evidence and I cannot regard its contents as evidence in the trial.  The purpose in setting out the quoted passage from Mr Schultz’s book is because it was put to Mr Penhall and to Mr Lovegrove in their cross-examinations.

213               The following exchange took place between Mr Rush QC and Mr Penhall:

“Would that - is that the description that you read in the book of the removal of the children? --- I presume it was, yeah.

And is that sort of description of the removal of children from their Aboriginal mothers why you agreed that patrol officers described it as the most hated task? --- That would be one of the reasons, yes.

And insofar as Mr Schultz sets out his attitude to the policy in that book, you would agree that it was an attitude that was generally held by members of the Northern Territory community? --- No, I wouldn't agree with that.

You wouldn’t agree with that? --- No.

You would say that in relation to the circumstances that he described, that sort of removal, as far as the community of the Northern Territory was concerned at the time, was acceptable? --- No, it was a - the removal of the children was accepted in some areas; it was not accepted in others. I mean, it was - I can’t generalise that his opinion was the opinion of the general Northern Territory population.

The removal that he describes in that book that I’ve just read to you, I put to you, would not be a removal that in any way would be agreed with by the general population of the Northern Territory at the time? --- Putting it that way, yes, the general population wouldn’t agree with it.”

Contrary to the views expressed by Mr Penhall, Mr Lovegrove was prepared to agree in cross-examination that the type of removal referred to in Mr Schultz’s book, if true, and the Wave Hill removal that was referred to in the Leydin memorandum would have been completely unacceptable to the general community of the Northern Territory at the time.

214               Another example of public outrage at the treatment of part Aboriginal children was the Mulgoa incident in 1949.  That concerned a group of children who had been evacuated from Darwin to Mulgoa in New South Wales.  The evacuation took place in 1942 because of the war and it was proposed, in 1949, to return the evacuees to the Territory.  There were newspaper reports that one of the children, a fourteen year old girl called Joyce, was being forced to leave New South Wales against her will.  Out of these reports a ground-swell of opposition arose to the forced removal of the children.

215               The question of official Government policy was raised by the Director of Native Affairs, Mr FH Moy; he had taken up the position in place of Mr Chinnery.  He wrote the Administrator on 20 March 1950.  After setting out the provisions of ss 6 and 7 of the Aboriginals Ordinance Mr Moy said:

“In a statement of the ‘Commonwealth Government Policy in respect to North and Central Australia’ issued during 1931, the following extracts are set down:-

          ‘To collect half-castes and train them in institutions to enable them eventually to take their places in the ordinary life of the community.’

          ‘Half-caste girls are brought into the homes as soon as possible after reaching an age when they can be separated from their native mothers.’

The abovementioned extracts are the only reference to an approved Government Policy in available relevant files.”

Mr Moy continued in his report that, prior to the Second World War, “half-castes were removed regularly” but that facilities and personnel were not available “to undertake these duties” during the war years and so, as a result, “no removals were effected”.  Mr Moy then explained that there were now (ie in 1950) a number of children “to be brought in who are much older than when they normally would be separated from their native mothers”.

216               The clinical coldness of this report was not tempered by the next paragraph in Mr Moy’s report:

“Although Section 6 of the Ordinance gives wide powers to the Director, wherever possible it is the policy of this Branch to remove the children from their native mothers as soon after birth as is reasonably possible.  However, it will be appreciated that this course is not always possible for the following reasons:-

          (a)        Half-caste births are sometimes not known for some years;

          (b)        The mother takes the child ‘bush’;

          (c)        Locating half-caste children in remote and difficult country.”

217               Mr Milliken had not seen this document prior to giving evidence and was reluctant to acknowledge that it represented either the policy or the practice of the Native Affairs Branch in 1950.  In so far as Mr Milliken did not join the Branch until 1955, his reticence is understandable.  But Mr Moy was the Director of Native Affairs and had held that position since 1946.  Who better to inform the Administrator on matters of policy and practice?  I see no reason why the contents of Mr Moy’s memorandum of 20 March 1950 should not be accepted in these proceedings as some evidence of the guidelines that were used at that time by the Director of Native Affairs and his officers when deciding whether or not the Branch should involve itself in the removal of part Aboriginal children to an institution.

218               The practice of removing part Aboriginal children from their families and bringing them in for education continued.  Examples of written records that referred to that practice are as follows:

·                 the letter of 19 September 1950 from Mr Leydin to the Director of Northern Territory Affairs, Department of the Interior, in which he wrote:

“The removal of part-aboriginal children from pastoral properties is continuing under the supervision of a Patrol Officer working in conjunction with a Nursing Sister.

Recently four children were removed from the Borroloola area and two from Daly River.  They will proceed from the Aboriginal Inland Mission, Darwin, under supervision, to Garden Point and Croker Island Missions.”

·                 Mr Leydin’s letter dated 13 November 1950 to the Director of Northern Territory Affairs is more detailed:

“Patrol Officer J. R. Ryan, accompanied by Mrs. Ryan, who is a trained Nursing Sister, recently visited Groote Eylandt during a tour of inspection of the Roper River and coastal district.  They are at present returning from the Daly Waters district bringing several part-aboriginal children, who will be placed in one or other of the various missions.

Mrs. Ryan accompanies her husband on these tours, taking into custody all part-aboriginal children found in Native camps or living under conditions unsuitable to their welfare.

It has been found that Mrs. Ryan’s presence greatly alleviates the shock of parting Aboriginal mothers from their children, where the occasion demands.  Furthermore the children experience far less distress during the journey to the receiving home at the Aboriginals Inland Mission, Bagot Settlement.  The continuance of this practice is most desirable, especially in the interests of the mothers and children.”

·                 Mr Ted Evan’s report dated 19 October 1951 to the Director of Native Affairs advised that four part Aboriginal children were “removed from their native environment during the patrol”.  Mr Evans wrote:

“The removal of each child was effected harmoniously and without any distress on the part of the mothers and vindicates the policy of educating the native mind to an appreciation of the benefit to be gained by the part-aboriginal child being brought up in a separate environment.”

            He then continued in his report that there were seventeen more children to be brought in.  He named their locations and then added:

“The process of educating and preparing the mothers for the eventual separation was continued in each case, and I am confident that each child will eventually be willingly handed to my custody.”

219               Subsequent events, to which reference will later be made in these reasons, will show that there were material changes in attitude towards the subject of the removal of part Aboriginal children; those changes commenced well before Peter Gunner left Utopia in 1956 for St Mary’s and continued thereafter.  On the other hand, there is no evidence that would suggest that the position in July 1947, when Lorna Nelson was taken from Phillip Creek to the Retta Dixon Home, was any different to that prevailing in March 1950.  In other words, it would be reasonable to proceed, in my opinion, upon the premise that the official view of the Native Affairs Branch about the removal of part Aboriginal children in July 1947 was fairly represented by the Director’s letter of 20 March 1950 to the Administrator.

220               Dr Duguid, the noted humanitarian and surgeon, who had been instrumental in the establishment of Ernabella Mission, was reported in the Press on 23 October 1951 as saying that the policy of the Federal Government in separating part Aboriginal children from their mothers was wrong.  The concerns expressed by Dr Duguid were not unique.  On the contrary, they were representative of growing public opinion that did not approve of any policy of removing part Aboriginal children from their families.  The day after Dr Duguid’s statement was published, Mr Moy provided the Administrator, Mr FJS Wise, with a statement of the existing policy and practice in relation to the removal of part Aboriginal children.  After referring to the powers and responsibilities of the Director of Native Affairs as set out in ss 5 and 6 of the Aboriginals Ordinance, Mr Moy set out the policy, as he understood it, of the Native Affairs Branch in the Northern Territory:

“It has always been the policy of the Native Affairs Branch in the Northern Territory to remove part-aboriginal children from their native environment into institutions where they may receive education, vocational guidance and in general fit them for their absorption into the community on attaining adult age.  There are four such Institutions in the Territory – at Garden Point, Croker Island, and the Retta Dixon Home, Darwin, in the north and St Mary’s Hostel in Alice Springs.  In addition, male part-aborigines from the Northern Territory are also admitted to St. Francis House, Semaphore, South Australia.

Patrol Officers, under my direction, are requested from time to time to endeavour to remove certain part-aboriginal children from their native environment on cattle stations and other places, and these officers prepare the mothers of these children for the eventual separation.  It is impressed upon them the advantages to be gained by the children and the disadvantages of allowing them to remain in the camp.  The matter is discussed with the tribal husbands.  If, at the first visit, the parents are loth (sic) to part with the child the matter is left until the next visit when another attempt is made and the process of ‘educating’ the parents is continued.  Eventually (and a period of two years may elapse between the first attempt and final success) the child is willingly handed to the custody of the Patrol Officer.

Under these circumstances there is no distress on the part of either party.  In fact it strengthens the confidence of the native peoples in the work of the patrol officer.  There have been instances of mothers giving their part‑aboriginal children into the care of Native Affairs Branch officials without any prompting and, only this year, one aboriginal mother brought her two part-aboriginal children to Darwin and asked that they be admitted to one of the Institutions.

All mothers are given the opportunity of accompanying their children to Darwin or Alice Springs and this offer is sometimes accepted.  In this way they get some insight into the conditions and surroundings of the future life of their offspring, and they invariably return to their country satisfied.

Some Patrol Officers take photographs of the children and forward prints to the mothers as a keepsake.  This is always appreciated.

In conclusion, the Field Staff of this Branch must maintain harmonious relations with the full-blood aborigines in their districts if their work is to be successful, and they accordingly do nothing that would upset that harmony.  The removal of part-aboriginal children is one of their more difficult tasks, but I am confident that this work is done in a spirit of understanding, appreciation and co-operation.”

Mr Moy’s statement, less than two years after Mr Leydin’s report, is an early example of a strong change in the attitude of a senior public servant to the removal of part Aboriginal children.  It indicated that attempts were then being made to obtain the mother’s consent, although he did not go so far as to say that mothers had a choice in the matter.  The contents of his statement were also a vast improvement on the clinical detachment that was evident in his letter to the Administrator dated 20 March 1950.

221               Exhibit A14 is one of the more important documents that was tendered during the trial.  It is a letter dated 21 November 1951 from Mr Wise to the Secretary of the Department of Territories in Canberra.  It concerned the critical allegations that had been attributed to Dr Duguid.  After some introductory remarks, Mr Wise set out the terms of a Press Release that he had issued in response to Dr Duguid’s allegations.  The release was based on Mr Moy’s statement.  It was in these terms:

“For many years it has been the practice to bring part aboriginal children, living under tribal and nomadic conditions, to Darwin so that they may be cared for and educated at an appropriate establishment.

Some of these children are at Croker Island Mission Station, Garden Point Mission Station, the Retta Dixon Home, Darwin, St. Mary’s Hostel, Alice Springs, and St. Francis House, Adelaide.

The transfer of a child to a more favourable environment calls sometimes for the exercise by a Patrol Officer of a high degree of patience, tact and understanding, and I am satisfied that the officers of the Native Affairs Branch carry out this delicate and difficult task humanely and with the knowledge that the move is essential in the child’s interests.”

222               The Administrator’s letter then went on to deal with some further issues that had been raised by the Minister’s representative with the Acting Director of Native Affairs.  In addressing those issues the Administrator substantially adapted sections of Mr Moy’s letter when he wrote:

“Aborigines are human beings with the same basic affections that we have, and the aboriginal mother has a real love for her children, especially those of tender age.

We cannot expect the normal aboriginal mother to appreciate the reasons why her part aboriginal child should be taken from her.

In effecting the removal of part aboriginal children from their mothers these factors must be taken into consideration, and, to ensure that the least upset is caused to the mother and child, methods have to be employed to suit the circumstances of each case which calls for tact, understanding and sympathy on the part of the officer.

Patrol Officers, under the Director of Native Affairs, are required from time to time to endeavour to remove certain part aboriginal children from their native environment on cattle stations and other places, and it is the duty of these officers to prepare the aboriginal mother for the eventual separation in the best interests of the child.  The mother is therefore impressed with the advantages to be gained.  The matter is also discussed with the tribal husband.  If the officer is not successful on his first visit and the mother does not part with the child, other attempts are made later until such time as the child is willingly handed to the custody of a patrol officer.

Under these circumstances there is no distress on either the part of the mother or child.  Since this method has been employed there have been instances where mothers have given part aboriginal children into the care of Native Affairs Branch without persuasion.

Where possible, arrangements are made for the mother to accompany her child to Darwin or Alice Springs, as the case may be; the separation is then more gradual.

The policy is to win the confidence of the mother and other relatives of the children, and as far as possible, ensure that the removal is made with the least upset to the mother and child.”

223               I interpret that section of the letter as inviting the reader to infer that the children are only removed by gentle persuasion and with the informed consent of the mother.  Such an interpretation comes as a result of statements such as “there is no distress on either the part of  the mother or child” and the reference to arrangements being made for the mother to accompany the child.  But does such an interpretation accord with the truth of the matter?  Were these the words of a senior public servant who had the best interests of the part Aboriginal children at heart or were they nothing more than pious hypocrisy?  We shall never know because Mr Wise is dead and so his writings cannot be tested under cross-examination.  In fairness to him however, the probabilities are that he believed in what he wrote because his letter was, in material respects, a reproduction of what Mr Moy had written; it seems reasonably obvious that Mr Wise was, at the least, relying on what his Director had told him.  What then of Mr Moy’s opinions; unfortunately, he also is dead and so his opinions and his knowledge cannot be tested.

224               In this same letter, the Administrator reported details of the number of part Aboriginal children who had been removed from the care of their mothers in the Northern Territory during the preceding two years; he wrote that forty-two children had been removed in a two year period – a number which, to many, would appear to be very low if there was, as the applicants have alleged, “a general policy of removal and detention” of part Aboriginal children to institutions.  The particulars of the children showed that they were removed in the following circumstances:

“Removed from full-blood aboriginal camp

23

 

At request of parent

12

 

Mother unable to maintain due to health

1

 

Irresponsible mother (disinterested and offering no objections)

1

 

No definite information available (probably removed from full-blood aboriginal camp).”

 

5

225               If the Administrator’s letter correctly recorded the state of affairs, one might think it appropriate to assume that the twenty-three (or perhaps twenty-eight) children who had been “removed from full-blood aboriginal camp” had been removed with the informed consent of their mothers.  Unfortunately, that is not spelt out clearly and it would not be appropriate in my opinion, to draw such an inference.  However, if I proceed upon the premise that these figures can be accepted as truthful (and there has been no suggestion that they are false) they do not support suggestions of widespread, indiscriminate removals of part Aboriginal children.

226               The report of the Administrator dated 28 February 1952 to the Secretary, Department of Territories in Canberra listed statistical details of the children who had been removed from their communities, their ages and the institutions to which they had been removed.  The report stated that the basis of the Government policy of Native Affairs was:

“gradual assimilation of coloured people into the Australian community”

adding that those who were:

“… most easily assimilated are persons of mixed blood, provided that they are able to enjoy from an early and impressionable age the medical care, training, teaching and general living conditions available to the community at large.”

According to the report, a total of forty-five boys and sixty-five girls had been placed in one of four institutions in the six years between 1946 and 1951.  The statistics were as follows:

                                                                                  Boys          Girls

St Mary’s Hostel

6

16

Retta Dixon Home

7

11

Garden Point Mission

12

11

Croker Island Mission

20

45

 

27

65

 

These are bare statistics; they do not disclose the reasons for the placements.  How many were forcibly removed against the wishes of their family?  How many were removed, either at the request of or with the informed consent of their families?  How many were removed because they were neglected or abandoned or in need of medical care and attention?  In a six year period, these numbers represented an average of about fifteen placements per year throughout the Territory.  Even though one forced removal would be regarded today as one too many, the numbers in the Administrator’s report, if accurate, do not support an argument that there was a large scale policy of forced removals occurring in this period.

227               Some, but not all, of the Administrators’ reports contained statistical information that disclosed the number of part Aboriginal children of school age in the Territory and the number of those children who were in one or other of the institutions.  This information was collated by the Commonwealth and presented as part of its written submissions.  The Commonwealth, in its compilation went back to 1910 and included, where available, census statistics of adults and all children.  I will limit myself to the period 1947 to 1961 and to part Aboriginal children of school going age.  In considering these figures, it must be remembered that some of the part Aboriginal children in the institutions were there at their parents request and that others were there because they were neglected or destitute and in need of care.  In presenting its submissions, the Commonwealth noted that the institutions, on occasions, held some children outside school age; the available figures do not identify those children however.  (The symbol n/a means that no figures are available.

Financial Year

Part Aboriginal Children in Schools

Part Aboriginal Children in Institutions

 

 

 

1947

n/a

n/a

1948

n/a

n/a

1949

332

n/a

1950

409

n/a

1951

396

n/a

1952

441

373

1953

535

425

1954

n/a

407

1955

625

368

1956

675

355

1957

733

384

1958

802

337

1959

815

315

1960

n/a

306

1961

n/a

293

228               The Administrator’s report of 28 February 1952 recognised that objections would be taken on humanitarian grounds, but it continued that, despite the difficult and delicate nature of the problems, “partly coloured children should continue to be removed”.

The Hon Paul Hasluck MP

229               As Minister for Territories, Mr Paul Hasluck (as he then was) received a letter of concern about the removal of part Aboriginal children from Mrs Edna Rockliff, the joint secretary of the Status of Women’s Council of the Australian Association for the United Nations.  His reply, dated 23 November 1951, addressed the subject in detail.  Although it was not a Ministerial Statement, the calibre and reputation of Sir Paul justifies quoting extracts from his letter and relying on them.  He acknowledged that there was a policy of removal, saying:

“For many years past, under successive governments, the policy has been that, where half-caste children are found living in the camps of full-blood natives, they should, if possible, be removed to better care so that they may have a better opportunity for education.  The theory behind this policy is that, if the half-caste child remains with the bush tribe, he will grow up to have neither the full satisfaction in life which the tribal native has nor the opportunity to advance to any other status.”

In that opening statement there was a claim that the policy was for the benefit of the individual.  That theme was pursued in the next paragraph of the Minister’s letter:

“This policy is applied with care and discretion and a full recognition on the part of the Administration that the aboriginal mother has the same affections as every woman.  The patrol officers are required, from time to time, to visit the various tribes of full-blood natives and, if it is decided that the advantage of the child will be best served by removal, the patrol officers endeavour to prepare the aboriginal mother for the eventual separation and to impress her with the advantages which her child will gain.  The objective is to have the child willingly handed over to the custody of the Department of Native Affairs and, where possible, the mother is permitted to accompany the child to make the separation more gradual.”

History may not treat the Minister kindly, but he nevertheless ended his letter by saying:

“The purpose of the action taken is to serve the interests of the children and to give them the chance of living at a better standard of life.  I have again asked the Administrator to ensure that, in the application of this policy, every care and sympathy must continue to be shown for the natural feelings of the people concerned.”

There was, in the letter, an unstated assumption that the standard of life that would await the child would always be better than life with his or her mother in a tribal environment.  Mr Stahl, who was then acting as the Director of Native Affairs, proceeded to advise all patrol officers on 3 January 1952 of the views of the Minister as expressed in his letter to Mrs Rockliff; he added that the Acting Administrator had instructed that:

“… the intentions of the Minister’s comments as repeated above be fully complied with in all actions involving the removal of part aboriginal children.”

230               On 25 January 1952, Mr Leydin wrote the Secretary, Department of Territories, in answer to a request for further information about the removal of nine children.  Mr Leydin discussed the children by name and summarised the details of each child’s removal.  The letter claimed that five of the nine children, Arthur, May, Sydney, Barbara and Harold, were removed with their mothers’ consent and that one mother accompanied her child to Darwin.  Two children, Mabel and Hector, were removed at their mothers’ requests and both mothers accompanied their children to Darwin.  Mr Leydin reported that the mother of another child, Christine, “was irresponsible” and that “the child was neglected”.  He added that “the mother was disinterested and raised no objection to the removal of Christine”.  The last of the children was a four-year old girl, Mitzi.  As to her, Mr Leydin had to report that it was an instance where “unfortunately, the full consent of the mother was not obtained” by the person who removed her.  Mr Leydin then went on to report that some months later patrol officer Ted Evans visited the mother:

“… and the reasons for and advantages to be obtained by the removal of her daughter were explained to Mitzi’s mother who gave no indication of resentment because of the separation of the child from her and, in fact, agreed Mitzi would be better cared for in her new environment at the Mission.  She was given a photograph of her daughter … .”

231               The case of Mitzi showed that a child was removed from her mother without the consent of her mother.  The Government Secretary also acknowledged – perhaps with insufficient emphasis – that “some distress was caused”.  But the fact that a patrol officer later visited the mother, bringing her a photograph of her daughter, was not consistent with an arbitrary, uncaring, policy of forced removals.  I must be quick to point out that I am here talking about policy:  I am not talking about how different patrol officers may have enforced that policy.  Just as I am ready to accept the evidence of Mr Penhall that he never removed a child from his or her mother, so I am equally ready to acknowledge that acceptance of that evidence does not lead to a conclusion that there were never any cases of forced removals.

232               Dr Ann McGrath, an historian, was called by the applicants to give evidence on the limited subject of contemporary attitudes to the policy and practice of removal of part Aboriginal children in the Northern Territory between 1947 and 1963.  She conducted a survey of primary documents, contemporary works and secondary sources relevant to prevailing attitudes amongst the general community in that period concerning that policy and that practice.  She referred to the extensive adverse press coverage with respect to the Mulgoa children as evidence of community concern and disquiet about the forced separation of part Aboriginal children from their parents.  Her opinion, based on that survey and her own knowledge of the history of Aboriginal and white relations, was that there was disquiet and sometimes deep concern about the general policy and practice of removal of Aboriginal children from their families.  I accept Dr McGrath’s opinion.  It was supported by other material that was tendered in evidence.  There were, for example, the reported views of Dr Duguid, the letters of inquiry from Mrs Rockliff and, most telling of all, the Leydin memorandum.

233               Following upon the Minister’s letter to Mrs Rockliff and the distribution of a copy of it to the Administrator, Mr Wise wrote the Secretary, Department of Territories on 28 February 1952.  His letter was based upon the premise that he and his officers in Darwin did not know whether Ministerial approval existed in respect of the policy concerning the removal of part Aboriginal children that was practised by the Native Affairs Branch.  Mr Wise commenced his letter saying:

“… it was the practice, prior to the war, to remove part-aboriginal children from aboriginal camps to places where they could be fed, clothed, taught and otherwise cared for.”

Later, he added that no record of Ministerial approval to a policy of removal of part Aboriginal children “can be found here” although he subsequently claimed that:

“The basis of the Government policy of native welfare is gradual assimilation of coloured people into the Australian community.”

Maintaining that he was satisfied that the practice of removing part Aboriginal children “from native camps and nomadic conditions” to appropriate institutions was “in accordance with the Government’s policy of assimilation”, Mr Wise submitted for the consideration of the Minister his recommendations “that future policy” be based upon the principles enumerated in his letter.

234               Counsel for the Commonwealth submitted that, at all times relevant to Mrs Cubillo and Mr Gunner, the Commonwealth’s policy was, except for cases of neglect or for reasons of health, that a part Aboriginal child would not be removed from his or her environment without the mother’s consent.  The high point in counsel’s submission was the Minister’s response to the Administrator’s letter of 28 February 1952.  The Administrator had concluded his submissions to the Minister with the following recommendations:

“(a)     Partly coloured children found in aboriginal camps or a similar environment may be removed, if the Director of Native Affairs thinks it necessary in the interests of the children, to a suitable institution.

(b)     No such child shall be removed without the written approval of the Director of Native Affairs.

(c)     The officer removing the child shall hold such powers delegated to him by the Director as may be necessary to effect the removal lawfully.

(d)     No child under the age of 4 years shall be removed except where the child is neglected or in need of medical care or the mother expressly requests the removal.

(e)     No child shall be removed except where it is neglected or is in need of medical care or the mother expressly requests its removaluntil the Director is satisfied that a painstaking attempt has been made to explain to the mother the advantages to be gained by the removal of the child.

(f)      The mother is to be permitted to accompany her child, if she so desires, to Darwin and Alice Springs, to satisfy herself that the child will be well cared for.

(g)     Aircraft shall not be used for the removal of a child except where no other method of transport is available.

(h)     All children shall be medically examined without undue delay upon removal at Darwin and Alice Springs.

(i)      A report shall be made by the Director to the Administrator immediately after the 30th June in each year showing the names and ages of children removed during the year, the circumstances of removal in each case, the name of the institution to which each child has been committed, and the general condition of and progress made by each child committed to an institution.”


It was agreed between counsel that Sir Paul made handwritten notations next to each recommendation; he wrote the word “approved” next to paragraphs (a), (b), (c), (f), (g), (h), and (i), but with the requirement that the report in par (i) be confidential and for official use only.  As to par (d), the Minister saw no reason for an age barrier and noted that “the younger the child is at the time of removal the better for the child”.  In respect of par (e) he wrote “approved” but made an additional notation:  “[P]lease insert commas, as shown, to make the meaning clear”.  The Minister marked on the submission a comma after the word “removed” and another comma following the first occurrence of the word “removal”, so that paragraph (e) would read as follows:

“(e)     No child shall be removed[,] except where it is neglected or is in need of medical care or the mother expressly requests its removal[,] until the Director is satisfied that a painstaking attempt has been made to explain to the mother the advantages to be gained by the removal of the child.”

235              In a memorandum dated 17 April 1952, Sir Paul formally approved of the recommendations in pars (a) to (i) subject to the qualifications evidenced by his notations and comments; he added the additional note:

“… that the procedure outlined in your recommendations is in accordance with Government policy and, in the application of the policy, the interests of the child are to be paramount, while every care is taken to respect maternal feelings.  Continued efforts are to be made to ensure that the children removed from their parents do, in fact, receive a full opportunity to learn to live after the European manner, and eventually to earn their living in the European community.”

·                 The notations that were made by the Minister are significant in the following respects:

·                 they were silent on the subject of maternal consent;

·                 but they called for respect for maternal feelings;

·                 they emphasised that the interests of the child were paramount; and

·                 they unashamedly advocated active assimilation:  there was only an emphasis on living “after the European manner”; no mention was made of retaining Aboriginal culture or traditions.

236               The statement by Sir Paul in his memorandum of 17 April 1952 that the procedure that was outlined in the Administrator’s report was in accordance with Government policy was formally conveyed to the Administrator by the Departmental Secretary.  The secretary’s memorandum also informed the Administrator that his recommendations had been accepted subject to the minor qualifications to which reference has already been made.  The Minister’s memorandum was used to compile an instruction dated 1 May 1952 for distribution by Mr Moy, the Director of Native Affairs, to his District Superintendent in Darwin, the Assistant District Superintendent in Alice Springs, and patrol officers Evans, Ryan, Penhall, Bray, Greenfield and Lovegrove.  That instruction stated that, in effecting removals of “partly coloured children from Aboriginal camps”, the principles in the nine points in paragraphs (a) to (i) (as amended and endorsed by the Minister) were to be observed.

237               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.  To support that conclusion it is necessary to examine the manner in which the Minister altered the contents of pars (d) and (e) of the Administrator’s recommendations.  They can only be properly understood by having regard to the context in which they were written and by reading them in combination – not in isolation.  The general context, of which the contents of pars (d) and (e) form part, was the subject of the removal of children.  In the first place, the Administrator’s recommendations and the Minister’s approval are limited to “partly coloured children found in Aboriginal camps or a similar environment”.  Secondly, the decision to remove is reserved to the Director of Native Affairs – not the Administrator, nor the Minister nor the Commonwealth; thirdly, removal will only occur if the Director thinks it necessary in the interests of the child.  Fourthly, the removal must be to a suitable institution.  Fifthly, par (b) requires the written approval of the Director before any child is removed.  The contents of par (c), dealing with powers of delegation, do not call for special mention, nor do the contents of pars (g), (h) and (i).

238               That then leaves for consideration the contents of pars (d), (e) and (f).  Paragraph (f) is very important.  Although it must be emphasised, it can be disposed of quickly:  the mother of a removed child was to be permitted to accompany her child, should she wish, either to Darwin or Alice Springs so that she may satisfy herself that her child would be well cared for.  What then of pars (d) and (e)?  Bearing in mind that the general context is the removal of children and the second point made, that is, that it was for the Director to decide whether to remove the child, pars (d) and (e) must be read as offering guidance to the Director about the method and means by which he or she would make a decision.  The initial premise in par (d) was a statement that a child was not to be removed except for one of three reasons: neglect, health or the request of the mother.  If one of these three conditions existed, the child could be removed without further consideration.  Paragraph (e) then builds on par (d).  By the important placement by the Minister of the two commas, it removes the three issues of neglect, health and request from further consideration so that, effectively, par (e) reads that:

“No child shall be removed [---] until the Director is satisfied that a painstaking attempt has been made to explain to the mother the advantages to be gained by the removal of the child.”

Neither that paragraph nor any other part of the policy, as approved by the Minister, called for the mother’s consent, and the subject of consent cannot be imputed into the paragraph or the policy.  The use of the words “painstaking attempt … to explain the advantage” and the direction that the mother be permitted to accompany her child indicates, quite clearly in my opinion, that every possible personal consideration was to be given to the welfare of the child and the consoling of the mother.  But, in the final analysis, it is my conclusion that the policy allowed for the removal of a child against the wishes of the mother.

239               Counsel for the Commonwealth submitted that par (e) was capable of being read, and should be read, as meaning only that painstaking attempts should also be made when the child was being removed because of neglect or for health reasons.  I do not think that such an interpretation is reasonably available.  It would have the effect of merging the contents of the two paragraphs into the single proposition that no removals for any reason (except those made at the mother’s request) were to be effected unless painstaking attempts were made to explain to the mother the advantages to the child.  That would not be a reasonable proposition in the case of an abandoned child or a child who was in ill-health.

240               That does not mean however, that the Minister was countenancing a policy of arbitrary or uncaring removal or that the Minister was seeking to force a policy upon the Director so that the Director’s powers were circumscribed.  The Minister may be taken to have been aware of the legislation that reposed in the Director the power of removal and that the legislation provided that the power was only to be used in the interests of the child.  Furthermore, that power of the Director is spelt out, quite clearly, in par (a) of the nine points.  In summary, my assessment of the position in April 1952 is as follows:

·                 the Director was entitled, at anytime, to undertake the care, custody or control of a part Aboriginal child, if, in the opinion of the Director it was necessary or desirable in the interests of the child to do so:  c.f. subs 6(1) Aboriginals Ordinance;

·                 a policy statement had been approved at Ministerial level dealing with the circumstances when such a child might be removed; it referred to the circumstance of the Director thinking it necessary, but it did not address the case where the Director might think it desirable; it called for a painstaking attempt to explain to the child’s mother the advantages to be gained from the child’s removal – but it also took for granted that it would always be in the best interests of the child to be removed; and

·                 the Director was free, in the final analysis to remove a child without the mother’s consent.

241               On the one hand, it can be emphasised that removal was only to be effected “in the interests of the children” and after “a painstaking attempt” had been made to explain to the mother the advantages that her child would enjoy; but, on the other hand, and contrary to the Commonwealth’s closing submissions, the policy was silent on the subject of the mother’s consent.  A careful reading of the terms of the policy shows that, in the final analysis, a child could be removed against the express wishes of its mother.

242               Having been circulated in May 1952, the 1952 principles preceded Mr Gunner’s removal from Utopia Station in 1956 but Mrs Cubillo had been taken to the Retta Dixon Home long before, in 1947.

243               Mr Penhall said that he thought that he could recall receiving a copy of the 1952 principles.  The examiner asked him:

“And how do you interpret that and apply it in practice?”

Mr Penhall replied:

“Well, as far as I was concerned, it laid out the guidelines and, as far as I’m concerned, I was never ever called to put it into operation.”

Mr Lovegrove said that although he could not remember receiving or reading a copy of the 1952 principles, there was nothing in them that surprised him.

244               The contents of the 1952 policy are of importance to both these claims, but they are not an immediate answer to either of them.  Without in any way seeking to diminish their effect, it must be remembered that the critical exercises are to investigate the individual circumstances of each applicant.  Mr Gunner’s situation is the easier to explain:  was his removal effected in accordance with the 1952 policy?  If it was, did the 1952 policy accord with the statutory provisions as contained in the Aboriginals Ordinance?  If there was any departure from those principles, was there an acceptable explanation for that departure?  In Mrs Cubillo’s case, the first, and harder task, will be the attempt to ascertain the details of the operational policy in existence at the time of her removal.

245               On 11 November 1952, Mr Gordon Sweeney, then the District Superintendent at Darwin, wrote Mr Moy, the Director of Native Affairs, describing the circumstances of three part Aboriginal children aged three, four and six.  The body of the letter was as follows:

“It was originally decided that the above children should go to Garden Pt. Mission.  Committal Orders were made out and arrangements made for the children to proceed to Garden Point by Mission vessel on Oct. 29th.

When the children were taken to the boat by Patrol Officer Ryan, there was no suitable woman on the boat to care for the children and the children were so distressed at being parted from their mothers and friends that Mr Ryan returned the children to Bagot.

The children have been at the Retta Dixon Home Bagot since 30/5/52.  When first admitted they were suffering from malnutrition; under the care of A.I.M. and Hospital staff the children are now making good progress and have settled well into the life of the Retta Dixon Home.

After the 5½ months in the Retta Dixon Home, it is not in the best interests of the children to cause another major upset in their young lives such as transfer to a strange institution and it is recommended that the committal orders be cancelled and the children remain at the Retta Dixon Home.”

Mr Moy approved Mr Sweeney’s recommendation.  If the contents of this letter are accepted at face value, and I see no reason why they should not be, it is an example of contemporaneous evidence that Mr Sweeney and Mr Moy were endeavouring to administer the policy of removal in a humanitarian way, with compassion, and with the interests of the children paramount in their considerations.  Not all items of correspondence tell the same story however.  On 1 October 1952, Mr McCoy, as Acting District Superintendent at Alice Springs, wrote Sister Eileen asking whether St Mary’s could accommodate the four part Aboriginal children who were named in his letter.  There was no suggestion that the children would be entering St Mary’s with or without their families’ consent.  The letter was devoid of all personal details.  The difficulty that confronts the parties and the Court is that there is no way of knowing whether Mr Sweeney’s letter represented an exception to the rule or whether it represented the rule.  Neither Mr Sweeney nor Mr McCoy is alive to have their evidence tested in the witness box.

246               Mr Wise, the Administrator, submitted a report to the Minister for the Interior, the Hon Paul Hasluck MP for the period 1 July 1949 to 30 June 1953.  Surprisingly, the report stated that “only about 800 natives live a fully tribalised life” in the Northern Territory, adding that the native tribal structure and way of life “are in the process of disintegration”.  Mr Wise then discussed the subject of policy, saying:

“The policy of the Government is so to direct and encourage the re‑establishment of the aborigines that they will eventually be assimilated as an integral part of the Australian community and will not be merely a group in contact with that community, but not accepted by it on a basis of social and economic equality.  It is recognized that this process will take a long time but recent legislation provides the framework for the necessary development.”

247               In January 1954, the Department of Territories, (formerly the Department of the Interior) wrote the Department of External Affairs commenting on the contents of a letter that had been received from the Women’s International League for Peace and Freedom, a body which, from its letterhead, had a consultative status with the United Nations.  The League had submitted to Mr Hasluck a copy of a statement of policy that it had drawn up and sent to its headquarters in Geneva with regard to Australian Aborigines.  The statement said that the League sought, among other things:

“Substitution of a ‘mother and child’ welfare system for the present practice of forcibly separating mother and child.”

248               Allowing for the possibility that the League’s recommendations “might be taken up with UNESCO”, the Department of Territories briefed the Department of External Affairs on each of the matters raised in the League’s statement of policy.  As to “the mother and child” welfare system the Department wrote:

“This recommendation is vague and, by implication, misleading as the Welfare system does not involve a present practice of forcibly separating mother and child.  Separation is the exception used only where the child, whether European or native, is judged to need other care.  Under the Aboriginals Ordinance, the Director of Native Affairs has the power to remove aboriginal children, deemed to live under neglected conditions, from their families, but this power has only been used in rare cases.  Under the State Children’s Ordinance of the Northern Territory a magistrate has similar powers to commit neglected European children to the custody of the State Children’s Council.”

The applicants submitted that the Department’s assertion that the power of the Director of Native Affairs to remove Aboriginal children from their families was exercised only in rare cases that did not accord with reality.  The accuracy of that submission depended on the meaning given to the word “remove”.  If it related to removals that were effected both with consent and without consent, the applicants’ submission might be accurate.  But there are very few writings that have been tendered as evidence in this trial that established a lack of consent:  there was Mr Evans’ experience at Wave Hill and the episode involving Mitzi; there is also the evidence of Mrs Cubillo and her witnesses and Mr Gunner and his witnesses – all of which has yet to be considered.  But, even if one were to allow for total acceptance of their claims, the evidence that is before the Court is not strong enough to challenge the proposition in the Department’s 1954 letter that forced non-consensual removals were rare.  That is not to say that the contents of the Department’s letter were accurate; it merely means that the evidence that was presented to this Court does not amount to a sufficient challenge to the assertions in the letter.  Once again, the tyranny of time affects the Court’s attempts to state conclusions with confidence.

249               References to obtaining the consent of a mother before removing a child started to appear more frequently.  In February 1954, Mr McCaffrey, who was then the Acting Director of Native Affairs, submitted a report to the Administrator entitled:  “Coloured Children – Policy”.  In his report, Mr McCaffrey recorded the approval of the Minister to the 1952 policy as identified in the nine points.  He wrote that it was the authority upon which the Native Affairs Branch operated.  That operation was described by Mr McCaffrey in these terms:

“The normal procedure is to remove coloured children from their native environment and place them in an Institution when they are of school-going or even at a later age.  Where the children are illegitimate and born in a town they are removed to an Institution provided the mother is agreeable.”

250               Mr McCaffrey wrote that it was Government policy that “the interests of the children are to be paramount” and that “every care is to be taken” to respect maternal feelings.  Although the plain inference is that the mother’s agreement was not required if a child was living in a native camp or a community outside a township, there was the reference to obtaining the mother’s agreement in those circumstances where the child was illegitimate and living in a town.

251               Mr McCaffrey emphasised the claimed benefits of assimilation, saying that:

“… continued efforts are to be made to ensure that the children removed from their parents do, in fact, receive a full opportunity to learn to live after the European manner, and eventually to earn their living in the European community.”

252               Mr Ted Evans was the Acting District Superintendent at Alice Springs in 1954.  On 12 May of that year he wrote to a station owner seeking help with respect to a part Aboriginal child.  Although this letter did not address the subject of consent, it appears that it was nevertheless intended to be written with the best interests of the child in mind.  The letter was as follows:

“Part-Aboriginal child Fred […] and his mother, a fullblood Aborigine, are believed to be in the vicinity of your Station.

In order that Fred may obtain status in later life, consideration is being given by this Branch to educating him at St. Mary’s Hostel in Alice Springs.

It would be appreciated if you would supply this Branch with information regarding the child and his mother, particularly as to their mode of living, whereabouts, etc.

A Form of Information of Birth is attached for completion by you if this is possible.

Your co-operation in this respect will be gratefully received.”

253               At about the same time, 27 May, Mr JR Ryan, a patrol officer stationed at Katherine, wrote to Mr McCaffrey who was then the District Superintendent in Darwin.  First, he spoke of two part Aboriginal girls saying:

“I have no doubt but that I can get the approval of the mothers to remove them to Darwin.”

Later he said more generally:

“Provided I get the respective mothers’ consent and if I have your approval, I shall at a later date this year bring a number of the children to Darwin, preferably with their mothers.”

254               Mr Greenfield, a patrol officer, submitted three reports in October 1954; the first dealt with an eight year old part Aboriginal boy.  Mr Greenfield wanted to avoid the risk of the child undergoing initiation rites, a factor that points to the conclusion that the child, despite his parentage, was accepted in the Aboriginal community.  He wrote:

“Peter is now at the stage where the tribal elders are considering him for initiation.  It is most desirable that this step be prevented as it would remain a tribal tie in his future life, and could be a factor to increase the constant risk of his return to degraded living after efforts to uplift him cease.  I recommend that he be removed immediately, and propose to allow him to accompany me on the rest of my patrol, to be eventually delivered in Darwin.  This plan worked well in a similar case handled in that manner by P.O. Evans, and the mother and step-father have been approached on the scheme with gratifying results.  Peter seems very pleased with the idea, and at the moment there is no real barrier to the removal as recommended.”

The reference to the “tribal tie in his future life” is interesting.  I can only interpret it as meaning that this patrol officer regarded retention of Aboriginality as being against the child’s best interests.

255               In Mr Greenfield’s second report he recognised that the mother’s consent was only given reluctantly.  He said:

“This boy has now reached an age where it would be in the best interests of him and his mother to be removed to an institution.  I have discussed this with [R--] and she has reconciled herself to losing Tony.  I suggested that she take the child to Darwin herself, and the idea was readily accepted.  It is recommended that arrangements be made for [R--] to fly with her child to Darwin.”

256               The third report dealt with a girl, who was, as were the other two, then living at the Hooker Creek Native Settlement.  In each of the three cases, the mother was Aboriginal and the father was believed to be European.  Mr Greenfield recommended that the third child also be removed; he reported that the mother was willing to travel to Darwin with her daughter in company with [R--], the mother of the second child.  Each of these reports indicated that Mr Greenfield adopted an attitude of obtaining the mother’s consent.  He did however express himself differently in an earlier report.  He wrote:

“The child is as yet too young to be parted from the mother, but when she is old enough she should certainly be removed to an institution.  I warned the mother that this would be inevitable and she accepted this without comment.”

Expressed in those terms, his remarks pointed to an inevitability that the child would be taken with or without the mother’s consent.

257               In May 1955 the Secretary of the Department of Territories wrote the Prime Minister’s Department with information about the treatment of Aboriginals in the Northern Territory.  One of the subjects discussed in the Secretary’s letter was “assimilation” of which he said:

“Assimilation which means the social advancement of these people to a standard comparable to that of the European community revolves round the inter-related subjects of health and education.  Difficulties are experience in respect of the latter in that the social background of the native children differs so greatly from that of white children that their needs can be met at present only by a different education specially designed for them.  Moreover, it is only in recent years that particular attention has been given to the education needs of native people.  The education required is therefore not only special in the sense of being different from that required by the majority of the children, but it is also special because the methods most appropriate to the needs of aboriginal children are only now being worked out.”

258               In order that the Minister might be able to answer a question asked of him in the House, the Administration advised on 1 April 1957 that forty-six Aboriginal children had been removed from their parents since 1950; of that number, eighteen were removed in 1950, meaning that in the remaining six years, the number removed was twenty-eight, an average of less than five a year.  The request for the information was in the form of a teleprinter message and it suffers because of its cryptic language.  It asked four questions and in the first question it used the expression “aboriginal children” when asking how many children had been removed from parents.  But its last question, which asked about segregation in schools, included an additional sentence:  “Please show also above information for mixed bloods”.  It is not clear whether this sentence was intended to be limited to the subject of segregation or whether it was intended to extend to the subject of removals.  In any event, the reply does not distinguish between Aboriginals and part Aboriginals when listing the number of children who were removed.  The reply did however claim that no child had been removed without the consent of the mother.  The reply also claimed:

“Mothers are advised that child may be visited at regular intervals at expense of Welfare Branch.  This offer not availed of greatly but some mothers visit their children annually.  Patrol officers advise mothers of welfare of child on occasion of station inspection and in some instances arrangements are made for photographs to be forwarded to the mothers.”

The 1952 Policy – its end

259               The introduction of the Welfare Ordinance and the repeal of the Aboriginals Ordinance in May 1957 brought about significant changes.  The primary power of undertaking the “care custody or control” of a part Aboriginal child, as found in s 6 of the Aboriginals Ordinance, was not replicated in the Welfare Ordinance.  Under the later Ordinance, the Director’s powers were directed towards the care of wards; but, unless a part Aboriginal child had been declared a ward or committed by a court to the care of the State Children’s Council, the Director of Welfare had no power to remove a child without the consent of the mother.  The policy and the implementation of the policy in the form approved by Sir Paul Hasluck in 1952 had come to an end.

260               On 15 July 1958 Mr McCoy, the District Welfare Officer at Alice Springs, wrote the manager of a pastoral station; Mr McCoy said that he was writing in acknowledgment of the pastoralist’s letter “in which you recommend the transfer of certain part-coloured children to St Mary’s Hostel”.  Mr McCoy then went on to say:

“The children can only be transferred with the consent of the mother in those cases where she is still alive, and I would need her thumb print on a form of consent, prepared by this Branch.”

261               If the contents of this document are accepted as accurate, they serve as an indication that Mr McCoy, at least, had a personal view that children should not be removed except in cases where the informed consent of the mother had first been obtained.  This could of course, be an example of one man’s implementation of a policy being at variance with the policy; there is no answer to that proposition as Mr McCoy is dead.

The Milliken Tests

262               Following the 1952 policy, the operational policy of the Native Affairs Branch was spelt out in further detail some seven years later in 1959.  Mr Milliken said that when he first went to the Territory in 1955 he became aware of the fact that no tests had been formulated to guide patrol officers in determining whether a child should be removed to an institution.  That statement was not accurate because the 1952 policy, as laid down by Sir Paul Hasluck, amounted to guidelines that were to be used by patrol officers when investigating whether a part Aboriginal child should be removed from his or her family.  Nevertheless, Mr Milliken set about compiling a series of tests for use by the patrol officers.  However, it was not until August 1959 that the process of drafting and consultation was completed.  On 25 August 1959 Mr Milliken compiled a document, comprising three typed pages entitled:

“Tests to be applied in considering whether or not a part aboriginal child should be taken from an Aboriginal mother on a settlement or a pastoral property.”

It was a very detailed document that called for the closest scrutiny of the child’s personal circumstances, including the wishes of the child and the wishes of the child’s parents.  The tests which were commonly referred to as “the Milliken tests”, directed attention to the following areas:

·                the acceptance or rejection of the child within the native camp;

·                the child’s personal outlook and manner of life;

·                the child’s educational level;

·                the parent’s and the child’s wishes;

·                the attitude of the local pastoral management;

·                the child’s prospects of employment; and

·                the subject of total life adjustment.

263               An example of the detail to which Mr Milliken descended appears from the following questions that a patrol officer had to answer:

“Does the mother consider that removal is in the best interests of the child?  If so, why does she think so?

Has the mother consulted either her brother or her husband on the matter of removal, and if so, is she acting independently of them, in agreement with them, or in opposition to their express wishes?

Does the mother wish to keep in contact with the child over the years?”

264               The investigating patrol officer was directed under Mr Milliken’s guidelines, to consider all aspects of the child’s present and future circumstances.  The officer was not to be content to ask for the mother’s consent:  the mother should be asked to state her reasons why she thought that removal was in the best interests of her child.  The searching nature of the tests can be conveniently emphasised by quoting the last three questions:

“Having considered all points separately, is the child likely to live a more contented, happy and fuller life, if removal occurs, than if he is left where he is?

Why could it be thought that the child’s ultimate life adjustment will be more effective following removal than it would be without it?

What are the over-all reasons in this case which make the Investigating Officer consider that removal is the best action to take in this particular case?”

As a matter of practice, Mr Milliken said that a child would not be removed without the consent of the mother except in those cases “where the child’s life could have been at risk or they could have been at risk of moral degradation”.  However, despite the extensive detail of the Milliken tests, it is significant that there was no clearly stated proscription against removing a child unless the mother first consented.  Thus, the question was asked:

“If there has been any reluctance on the part of the mother or child, on what grounds does the Removing Officer base his case for a continuation of pressure, on the parties concerned, to effect the removal.”

At best, that only suggested that every attempt should be made to obtain the consent.

265               Mr Penhall said that he had seen the Milliken tests, but only about two years before giving his evidence in this trial.  He understood that Mr Milliken was the author of the document and he had spoken to Mr Milliken about it.  It was Mr Penhall’s evidence that the document “basically summarised what – what we’d been putting into operation for – for about 10 years previous”.

266               Mr MacLeod, who was a patrol officer between 1955 and 1959 stated that he was unaware of the existence of any policy guidelines whilst he was working in the Administration.  He was shown a copy of the Director’s memorandum that set out the 1952 policy; he said that he had never seen it during his service.  He was shown a copy of the Milliken tests; he said that he had never seen anything like them.  That is understandable as he had left before Mr Milliken had finalised and distributed his guidelines.  Mr MacLeod had worked as a patrol officer out of Darwin.  His work often took him to the Bagot Reserve but he had nothing to do with the Retta Dixon Home.  This was because his work primarily concerned full blood Aboriginals.

267               The review that I have conducted of the documentary evidence has not included a reference to every paper that was tendered in the trial but I should not be taken to have overlooked any document in so far as it is not specifically mentioned.  However, I consider that the material that I have quoted or summarised is sufficient to draw the following conclusions:

·                 as early as 1911, it was recognised that there “would probably be an outcry from well meaning people about depriving the mother of her child …”;

·                 Sir Paul Hasluck’s 1952 principles emphasised the need to make “a painstaking attempt” to explain to the mother “the advantages to be gained by removal of the child” but the mother’s consent was not a prerequisite;

·                 the writings that were tendered in evidence repeatedly referred to the welfare of the child or the best interests of the child, but never gave any credit for Aboriginal culture or for the bonding of the Aboriginal family; and

·                 the high point in the concern for part Aboriginal children can be found in the Milliken tests but even they do not explicitly state that a child could only be removed with the consent of his or her mother.

268               The conclusion that I have reached does not accord with the evidence of the former patrol officers, Messrs Penhall, Lovegrove and Kitching.  They each said that no removal of a child would be effected without maternal consent except for cases of neglect or health.  But their evidence is no more than their summaries of how they, as patrol officers, implemented a policy.  None of them was ever in the unfortunate position of being ordered by his Director to bring in a part Aboriginal child irrespective of the wishes of the mother.  The documentary evidence established that, although every consideration was to be given to the mother’s feelings and to her wishes, ultimately, her consent was not required to her child’s removal.

269               During the course of his evidence in chief, Mr Ford (who rose to be the Director of the Department of Aboriginal Affairs) was asked what he knew of official policy towards part Aboriginal children during his time in the Native Affairs Branch and the Welfare Branch.  His evidence was as follows:

“My understanding of the policy that no part-Aboriginal child was to be removed without the permission of its parents or parent.

Did you have any understanding as to what the purpose of the policy was? ‑‑‑ In relation to removals?

Yes, what was the purpose?  If the parents gave their consent, why were the children being removed? --- There could’ve been a number of reasons for removal of the child.

Do you personally know? --- Well, for its personal welfare, advancement, the possibility it may’ve been in – or the parent may be in trouble for having a part-Aboriginal child.  I won’t go any further than that.

Was the administration of this policy something that you were routinely concerned with? --- No.”

270               The applicants, in their final submissions, did not dispute that there is a distinction between the identification of a policy and the manner in which such a policy was administered.  In fact, counsel for the applicants, in their written submissions, emphasised the need to concentrate on the personal circumstances of Lorna Nelson and Peter Gunner.  They wrote:

“It is to be appreciated that the existence, and content, of a Commonwealth policy concerning the removal of part-Aboriginal children is not a determinative issue in this case … The applicants’ cases rest on what was done to them, on the Commonwealth’s conduct towards them, not on what was stated in one or other policy document, or in later self-justificatory speeches by politicians.”

271               In my opinion, this submission did not rest easily with the pleadings.  As I have already noted, in subpars 31(a) and 31(b) of her further amended statement of claim Mrs Cubillo had pleaded:

“(a)     The removal and detention of the Applicant occurred under the dictate of or pursuant to a general policy of removal and detention of half-caste children from their Aboriginal parents and without regard for the individual circumstances of the Applicant.

(b)     In applying the general policy of removal and detention of half caste children in respect of the Applicant the Director of Native Affairs failed to exercise his discretion properly or at all, in that he failed to consider and determine whether the removal and detention of the Applicant was necessary or desirable in the interests of the Applicant or of her mother.”

The same plea is to be found in subpars 43(a) and 43(b) of Mr Gunner’s further amended statement of claim.

272               The concept of a general or sweeping policy was repeated in par 34 of Mrs Cubillo’s further amended statement of claim.  In that paragraph it was alleged that her removal and detention was “in breach of the duty owed as guardian by the Director of Native Affairs to the applicant”.  The particulars of the alleged breach were then listed.  They were very extensive but, at this stage, I need only mention the second of them:

“(b)     Acting in accordance with a policy of removal and detention of half-caste children the purpose of which was to destroy the associations and connections of the Applicant with her Aboriginal mother, family and culture and to assimilate the Applicant into non-Aboriginal society without regard to her particular circumstances.”

Those allegations were an assertion of the existence of an arbitrary policy of general application.  On the other hand, the particulars of the alleged breach of duty that were set out in subpar 34(a) of Mrs Cubillo’s further amended statement of claim were consistent with counsel’s final submissions.  It was there alleged that there had been a failure to act in the best interests of Mrs Cubillo by failing to take into account her individual circumstances.  The same criticism can be made of Mr Gunner’s further amended statement of claim.  His pleadings mirrored those of Mrs Cubillo.

273               The applicants’ submission was that there was a policy in relation to part Aboriginal children from, at least, the 1920s and that it continued through the 1930s, through the war and that it was still in operation in the 1950s.  It was, so they claimed, developed in response to the perceived half-caste problem and the solution to the problem was said to be the removal from their environment and the detaining of the part Aboriginal children so that they could be brought up in a European manner.  That was the policy that was, from time to time, referred to during the trial as the “removal policy”, although that is not a label that is found anywhere in the contemporary documents.  The applicants chose to use that different term rather than the term “assimilation policy” because, so they claimed, a policy of assimilation by removal and detention, was developed for different reasons and by different means in the 1950s; it was, so they claimed, that latter policy that was implemented by Sir Paul Hasluck.

274               The applicants submitted that the policy that was introduced by Sir Paul was one that applied to the Aboriginal population at large in the Northern Territory.  It no longer made the kinds of distinctions that were found in the 1937 conference resolution or in the McEwen policy statement that was adopted by Cabinet.  By the 1950s there were no longer distinctions between the semi-civilised and the detribalised people who were living near towns, and the tribal Aboriginal people who were to remain living on reserves.  Those distinctions had gone and there was a general policy of assimilation for all Aboriginal people.  That was implemented by more gradual means, by establishing settlements, by the provision of special schools, by the subsidisation of schools on pastoral properties, by better health services, housing, and by regulation of employment; that is what the applicants referred to as the assimilation policy.

275               It is important to distinguish between the assimilation policy by removal, which continued to be applied to part Aboriginal children, and the more general assimilation policy that was a slower, more gradual policy of social change.  The applicants claimed that it was the removal policy that was in force when Lorna Nelson was removed and, notwithstanding that Peter Gunner was not removed until 1956, four years after the introduction of the 1952 principles, it was pursuant to the removal policy that he was taken from Utopia.

276               The applicants did not submit that “the removal policy” was an unlawful policy; they did not argue that it was a policy that was not authorised by the Aboriginals Ordinance.  Their submission was that the adoption of “the removal policy” led to unlawful results; that is, they said that the applicants were challenging the implementation of the policy as distinct from the policy.  They conceded that there may have been cases where the power could have been exercised lawfully, but, so they claimed, if the power was only exercised for the purpose of the implementation of the policy, without considering the true interests of the child, then it would have led to an unlawful exercise of the Director’s powers.

277               The applicants acknowledged that “the removal policy” was a policy that had been formulated by the Government to guide the Director in the exercise of his statutory powers and they agreed that it was not unlawful for the Director to have regard to that policy.  However, if that was all that he did, if he did not have regard to the individual circumstances of the child, then the result was an unlawful exercise of his powers.  That submission, coming in the closing stages of the trial, after all sides had closed their cases, was far removed from the exceptionally serious accusations that were made against the Commonwealth in both applicants’ further amended statements of claim – accusations that were maintained until the last moment throughout this very long trial.

278               Mr Lovegrove said that policy in respect of Aboriginal people changed in the 1950s.  He said in his evidence in chief that the change came:

“… certainly after Harry Giese came to the Northern Territory, and he was probably appointed because of the new policy.  I mean, the policy of assimilation was spelled out by Paul Hasluck.”

Asked to explain his understanding of the assimilation policy, Mr Lovegrove said:

“I saw it as preparing Aboriginals, especially young Aboriginals, to be equipped to take full advantage of equality within the Australian nation. I mean, Paul Hasluck put it in a far better way, more detailed form, but that was what it seemed to me to be the intent.  That, I think, is why education and health improvement were vital aspects of that particular policy.”

Mr Lovegrove was of the opinion that there was an emphasis on education for part Aboriginal children, more so than for Aboriginal children and, so he claimed, that emphasis existed from before the days of World War II.  He felt that prior to Sir Paul’s time, “nothing sort of positive” was done about changing conditions or giving Aboriginal people an opportunity to advance themselves.  He said that, in his implementation of the new assimilation policy, he had to pursue the twin objectives of first, ensuring that children attended school and secondly, encouraging parents to make sure that the children went to school.  He felt that there was a general acceptance by the Aboriginal people of the importance of education but there were cases of impatience that were brought about because a conventional education could interfere with the time that was needed for a child’s initiation process.

279               The Administrator, Mr FJS Wise, had written to the Secretary, Department of Territories by letter dated 28 February 1952 commenting that assimilation of “full-bloods” would be “difficult and slow”.  He added:

“Objections will no doubt be made against the policy from time to time on humanitarian grounds.  As a general rule, mothers and their children should not be separated, and in a white community, a mother’s right to the control and care of her child may be overruled only for very grave reasons and after the most careful enquiry.”

280               As a clinical psychologist, Mr Milliken agreed with the sentiment that, as a general rule, mothers and their children should not be separated.  He also agreed that distress would be caused even in those circumstances where mothers were persuaded, rather than compelled, to give up their children.

281               The Administrator continued in his letter, with obvious reference to the Wave Hill incident:

“That distress will be caused to mothers even where they are persuaded rather than compelled to give up their children, may be accepted.  On one occasion, for example, a Patrol Officer reported that ‘heartrendering scenes’ were witnessed when partly coloured children were being taken from their mothers for movement by air to Darwin.  He recommended the use of other methods of transport so as to reduce or avoid such distress.”

282               It was put to Mr Milliken that the views expressed by the Administrator in his letter of 28 February 1952 to the Secretary were still relevant and appropriate when Mr Milliken joined the Native Affairs Branch in late 1955; Mr Milliken would not agree.  He said that the amendments to the legislation that had been introduced in 1953 had “changed the whole thinking about part Aboriginal people”.

283               Mr Milliken was asked to describe the nature of his duties in 1955 when he took up his appointment as the Assistant Director of Welfare.  He said that his primary responsibility related to research and “operational activities” in respect of full blood Aboriginals in accordance with “the Minister’s and the Government policy”.  A statement of that policy is to be found in the Annual Report of the Northern Territory for the financial year 1955-1956:

“The policy of the Commonwealth Government is to direct and encourage the re­establishment of the aborigines so that they will eventually be assimilated as an integral part of the Australian community.”

Although he could not remember the precise details, Mr Milliken agreed that he had a hand in the preparation of that section of the report.  The strength and determination of the assimilation policy may be gauged from the following passage from the report:

“The task of the Welfare Branch in bringing aborigines to a stage where they can be accepted as full citizens in the community is essentially social in character.  The real job lies in changing social attitudes, values and institutions, customs and standards of living and in inculcating an interest in European forms of work and its rewards.”

It was Mr Milliken’s belief that he was involved in the preparation of that passage based on his understanding of the policy as laid down by Sir Paul Hasluck.  As he said during the course of his cross-examination, Sir Paul Hasluck was not the originator of the policy of assimilation but he did continue it.  The annual report for 1957-1958 showed a change in emphasis by incorporating a reference to Aboriginal culture.  It read as follows:

“It is the policy of the Commonwealth Government to promote and direct social change among aborigines in the Northern Territory in such a way that, while retaining connexions  with and pride in their aboriginal ancestry, they will eventually become indistinguishable from other members of the Australian community in manner of life, standards of living, occupations and participation in community affairs.”

According to Mr Milliken, this revision came out of the 1956 deliberations of the Native Welfare Council.  Asked whether that policy had a name, Mr Milliken answered:

“Yes, in – in respect of full-blood Aborigines, it was known as the policy of assimilation.”

284               Mr Milliken said that his early understanding of assimilation was that it had the objective of bringing “half castes into a situation … from which they could enter European society”.  Initially, this would have meant entry at the very lowest level of unskilled labour but Mr Milliken was quite firm in his evidence when he said that this changed for the better with the revision of the assimilation policy in the time of Sir Paul Hasluck.  That revision, according to Mr Milliken, extended to full blood Aboriginals as well as part Aboriginals and it gave them “the same opportunities as anyone else to become part of one total Northern Territory Australian population”.  When asked, during the course of his evidence in chief, how he would react to a proposition that the education that was given to part Aboriginal children was “simply to provide workers in the lowest level of work”, Mr Milliken replied:

“I would say there was nothing further from our thoughts than that.”

285               Counsel for the Commonwealth asked Sister Johnson:

“What would you say to the suggestion that domestic work was the only kind of work that the Retta Dixon girls were trained for?”

Sister Johnson replied quite forcibly:

“That’s ridiculous; they had the same schooling and opportunities as our own children.”

However, Sister Johnson went on to say that at that time there was very little work available in Darwin for young girls apart from domestic work.  She allowed for the possibility that some of them might have been able to obtain clerical work but, as she said, it was not an easy work situation.

286               I have had some difficulty in understanding why the applicants alleged that the Commonwealth had required the Director of Native Affairs to act in accordance with a policy of removal and detention of part Aboriginal children for purposes that included the purpose of providing:

“domestic and manual labour for the European community of the Northern Territory … .”

– and having made it – pursued it:  (see subpar 40A(b)(iii) of Mrs Cubillo’s further amended statement of claim and subpar 61A(b)(iii) of Mr Gunner’s further amended statement of claim).  They had also initially accused the Commonwealth of

“failing to make reasonable attempts to ensure that the Applicants would enjoy equal opportunity compared to non Aboriginal or non half-caste children in the society which the Respondent intended the Applicants to become a part of, being the non-aboriginal community of Australia.”

(see subpar 42(j) of Mrs Cubillo’s further amended statement of claim and subpar 63(j) of Mr Gunner’s further amended statement of claim).

287               That plea was in harmony with the retained plea of subservience – that the purpose of the policy of removal and detention was the provision of domestic and manual labour.  However, having withdrawn the allegation that the part Aboriginal children were denied equal opportunities, the applicants critically wounded their submission that there were attempts to convert them to a lower socio-economic role than the members of the European community.  The limited evidence on this subject cannot justify this assertion.

288               Mr Milliken was asked during the course of his evidence in chief to describe the attitude that was adopted by the Welfare Branch towards Aboriginal people.  His answer was interesting; he said that first, they were seen as “people to be respected as people”; secondly, they were seen as people with an important culture of their own, that we had to come to understand”; thirdly, Mr Milliken said of them that:

“…they were people who had to be given an opportunity, if they chose, to move into broader Territory society and to function in the same way as other people functioned.”

289               The Government’s policy on the education of Aboriginal and part Aboriginal children had been discussed by Sir Paul Hasluck at a meeting in Canberra of the Native Welfare Council on Monday 29 September 1952.  In a paper that was presented to that meeting, the Minister wrote:

“In the Northern Territory the policy is to make all the education facilities which are available to the white community accessible to coloured children who are living after the manner of Europeans.  The attendance of aboriginal children at the same schools as white children, where their geographical situation and cultural development permit, is accepted by the community as the custom as well as the policy.  The same practice is followed in the convent schools.  All these schools, attended by both white and coloured children, are on the same standard and use a similar curriculum as the primary and post-primary schools elsewhere in Australia.

An educational problem of a different and a more difficult kind is presented by the coloured children, nearly all full-blood, who live in tribal or semi-tribal conditions and whose cultural standard and mode of living are such that they require special schools and a special curriculum adapted to their needs and circumstances.  The conducting of such schools is made more difficult by the nomadic habit of the people and the fact that, to some extent, their own tribal education as natives may be proceeding in the tribe side by side with attempts to educate them towards a European way of life.”

That paper was put to Mr Milliken during the course of his evidence in chief.  He said that he was not familiar with the document but that he was familiar with the policy; it was in operational force when he arrived in the Territory in 1955 and continued thereafter.

290               In speaking of the educational policy that had been promulgated for part Aboriginal children, Mr Milliken said that, in the 1955-1956 financial year, funds were provided by the Commonwealth for the benefit of part Aboriginal children who wanted to extend their education and who wished to go interstate to do that.  Mr Milliken’s work involved visiting the missions so that he could assess the children who might be likely candidates to be sent interstate; he listed the prerequisites that he considered essential before he would recommend a child for further education interstate.  They were matters such as language skills, confidence and an ability to communicate and adapt.  But he was clear in saying that he would not recommend a child who did not want to go.  He said that under that scheme several children went interstate for further education and, so far as he was aware, the scheme was still in force when he left the Administration.  The operation of the scheme was passed over in 1957 from Mr Milliken to Mr Ray Vincent who took up the appointment of Administrative Officer, General Welfare.

291               Mr Milliken said that “it did not enter my mind at that time” that part Aboriginal people were to be included in the policy of assimilation.  He had formed that opinion because of the amendment to the Aboriginals Ordinance in 1953.  Mr Milliken considered that the amendment had given to the part Aboriginal people entry into general society and so they had thereby achieved assimilation.  Mr Milliken spoke of a male welfare officer, Babe Damaso.  He was a part Aboriginal and had been instrumental in 1951 in forming the Progressive Half Caste Association Incorporated.  It was Mr Milliken’s evidence that the Association had played an active part in lobbying to have the 1953 amendments passed.  Later in 1966, Mr Milliken said that he assisted Babe in “de-registering” the Association.  When asked why Babe wished to “de-register”, Mr Milliken replied:

“. . . Yes. He said that there was no need for the association any more; they had achieved their objectives; they were no longer regarded as Aboriginals; they were exempt – they’d been excluded from the Ordinance; their sons and daughters, and I’m quoting his words now, were marrying white and they were admitted to all the clubs and other places just as white people were.”

292               The value of this evidence is limited; it was hearsay, and even then, it was a view that was expressed by only one person.  Its value was limited to serving as a warning against generalising and assuming that all part Aboriginal people gravitate towards full blood Aborigines.

293               Mr Vincent was aware that there was a policy of assimilation on foot during his time in the Territory, but in giving his understanding of it, he did not differentiate between the full blood Aboriginals and the part Aboriginals.  His evidence was:

“As far as the Territory was concerned I saw assimilation as the attempt to bring a sense of acceptance and a willingness to or a desire to move into the wider community so that there could be personal development within the wider community.  Darwin already was very much a multicultural society and in many ways ready to accept people, but institutions may be lacking in terms of employment and other help.”

294               A reverse example of assimilation can be found in the evidence of Mr Jeremy Long.  He observed, during the course of his researches into the Hermannsburg Community in 1961, that there had been inter-marriage between part Aboriginals and full blood Aboriginals.  He wrote in his report that his research:

“ . . . indicates a successful assimilation of these people into a predominantly Aboriginal community.”

In his 1967 paper “The Administration and the part Aboriginals of the Northern Territory” Mr Long addressed the same subject, writing at 188:

“The situation of part Aboriginals in Alice Springs and the other towns of the Northern Territory is broadly similar.  In Alice Springs the part Aborigines have generally much closer ties with the Aboriginals and some live with and as Aboriginals; there seems to be substantially more prejudice in the white population against Aboriginals and discrimination is not unknown.”

295               During the course of her cross-examination, it was put to Mrs Moy that the purpose of gathering the part Aboriginal children together in the Retta Dixon Home was to “assimilate them into the white community”.  She did not agree.  She answered by saying:

“No.  Gathering of the children was because they had nowhere else to – to put them.

So all the children went into Retta Dixon, you say, because they had nowhere else to put them? --- That’s right, it was the only home.”

296               I accept Mrs Moy as a witness of truth.  I therefore accept that what she said in answer to those questions represented her present perception of the events of forty or more years ago.  I do not, however, agree with her perception.  Her evidence is only of literal accuracy if one proceeds upon the premise that it was necessary to gather the children together.  If such a necessity is accepted, then it might be correct to say that there was nowhere else other than Retta Dixon in which to place the children.  It seems to me that, in giving her answer, Mrs Moy overlooked the importance of first determining this question of necessity.

297               A native welfare conference of Commonwealth and State authorities was held in Canberra in January 1961.  The Commonwealth Ministers for Territories and Social Services were present; the Northern Territory was represented by the Administrator with the Director of Welfare in attendance.  The conference adopted the following definition of the policy of assimilation:

“The policy of assimilation means that all aborigines and part aborigines are expected eventually to attain the same manner of living as other Australians and to live as members of a single Australian community enjoying the same rights and privileges, accepting the same responsibilities, observing the same customs and influenced by the same beliefs, hopes and loyalties as other Australians.  Thus, any special measures taken for aborigines and part aborigines are regarded as temporary measures not based on colour but intended to meet their need for special care and assistance to protect them from any ill effects of sudden change and to assist them to make the transition from one stage to another in such a way as will be favourable to their future social, economic and political advancement.”

The conference went on to resolve upon methods of advancing the policy of assimilation.  Those methods included:

“Provision of education in normal schools and pre-schools to the extent possible otherwise in special schools and pre-schools for all aboriginal and part aboriginal children.”

298               The methods that were advocated for the advancement of the policy of assimilation did not refer to the removal of part Aboriginal children from their family environment.

299               This resumé of the evidence on the subject of assimilation can be brought to a convenient close by referring to a comment that Mr Lovegrove made in his evidence.  He said that in about 1972 or 1973 the policy of assimilation changed, following a change of Government, to a policy of self-determination or self-management.  He believed that with the advent of the policy of self-determination “there was a real swing back to Aboriginal culture at the cost of Aboriginal children’s education”.

Was there an Indiscriminate Policy of Removal?

300               There is material before the Court in the form of census reports and like statistical information indicating the number of part Aboriginals in the Northern Territory on various dates.  There is also evidence of “head counts” made by patrol officers on the occasions of their visits to outlying stations and camps.  Although there is no evidence identifying the number of part Aboriginal children living in the Territory on any given date one can, nevertheless, feel satisfied that the number of such children far exceeded the ability of the Commonwealth to implement a policy of indiscriminate removal irrespective of the personal circumstances of the child.  The number of institutions and their capacity to receive residents was small; the number of patrol officers who had the primary task of identifying whether children should be taken was small.  Of the children at the Retta Dixon Home and at St Mary’s, the evidence reveals that some were there at the request of their parents and that, in a small number of cases, parents paid fees for their upkeep.  The applicants have not, in my opinion, produced the evidence that would substantiate a finding that there was a “general policy of removal and detention” as alleged in their pleadings.

301               Mr Lovegrove said, and I accept, that he never received an instruction to bring in a part Aboriginal child irrespective of the wishes of the child’s family.  He acknowledged that discussions between a patrol officer and a mother about the welfare and future of her child could be complex and time consuming.  He agreed that it would be “an extraordinarily difficult task”.  I regarded Mr Lovegrove as one who was a genuine friend to the Aboriginal and part Aboriginal people.  He would not be one who would have participated in such a traumatic event:  conversely, if he had been a party to a forced removal, it would have been an event that would not have left his mind.  I am satisfied that Mr Lovegrove was never involved in the forced removal of a child from the child’s family.  The next question and answer in Mr Lovegrove’s evidence was also very important:

“Are you able to say, from your supervision of the patrol officers and your observation of patrol officers, to the extent you had it, whether other patrol officers adopted the same approach as you, or a different approach? --- I would say, generally speaking, they adopted the same approach as me. But patrol officers are individuals and they probably had different degrees of enthusiasm for it and they may’ve argued longer than I did, but, no, I - you know, apart from that, I don't think that - well, I think they were very much the same as me.”

That statement cannot be taken as a proven fact that no patrol officer ever engaged in an act of forced removal:  such an event could have occurred without Mr Lovegrove knowing of it.  But his evidence goes a long way towards a conclusion that, in his time, there was no widespread practice of forcibly removing part Aboriginal children from their mothers.

302               Mr Lovegrove said that as a District Welfare Officer – but not as a patrol officer – he had cases of children who were suffering from neglect – not only part Aboriginal children, but white children as well.  In such cases, it was his practice to have the child brought before the court so that, in appropriate cases, the court could make a declaration that the child was neglected.  The child would then be placed in the care of the Director of Child Welfare.

303               Mr Long was asked:

“Were you, as a patrol officer, limiting yourself to the period that you were a cadet patrol officer and became a full patrol officer, given any instructions as to the collection of children? --- No.

Or to report upon children? --- No, only as - insofar as they were members of the communities on cattle stations.

Yes, and insofar as they were members of the community on a cattle station, to what extent were you asked to report upon them? --- Primarily to check that they were there and record them in the census.

Nothing beyond that? --- We were interested in their general wellbeing, and . . .

Were you under any instruction to bring in and place at St Mary’s Hostel, half-caste children? --- I don't recall any such instruction ever being issued.

Did you ever do that? --- No.”

In another of his books, The Go-Betweens: patrol officers in Aboriginal Affairs Administration in the Northern Territory 1936-74, Darwin, North Australia Research Unit ANU, 1992; Mr Jeremy Long had written at 81 of the “policy of removing half-caste children from the camps” as a policy that had apparently been established early in the Commonwealth’s administration of the Territory.  In a section of that book there is a heading “A Most Hated Task”.  Mr Long said that he attributed that phrase to Dr Duguid.  He was not aware of anyone who had used the expression but he added that his research had indicated that “it was a task they [ie the patrol officers] might rather have not been performing”.  Nevertheless, it remained his evidence that his inquiries did not reveal any case of a patrol officer removing a child without the consent of the child’s parents.

304               Patrol officer MacLeod submitted a report dated 20 November 1957 to the Assistant Director of Welfare.  It dealt with his recommendations concerning six part Aboriginal children who were then living at Wave Hill.  The contents of the report are of interest for they indicate how Mr MacLeod approached his duties when the issue of the removal of children was to be considered.  The first of the six children who was considered by Mr MacLeod was Sheila, aged nine.  There was a proposition that she be adopted by a white family.  Mr MacLeod would not recommend that.  He felt that she was too old for adoption adding that:

“… her social habit and behaviour is such that she is not even one step removed from the squalor of camp life as exists at Wave Hill.”

He did however recommend her removal to an institution because:

“… there may still be time to improve this girl’s social status etc.”

He also wished to protect her, for he said that it was common knowledge that all part Aboriginal girls were at risk of becoming mistresses “to both black and white persons in the outback”.  No mention was made of the attitude of the child’s mother although she had been named in the report.

305               The next child, Pauline, a girl aged eleven, appeared to be the older sister of Sheila.  In her case there was the complication that she was already considered the tribal wife of a ward.  Mr MacLeod wrote that it was therefore “difficult to judge whether or not removal is in the best interests for this girl’s future and peace of mind”.  On balance, he thought removal to an institution was the best course of action.

306               The third girl was another sister, Jane, aged five.  Mr MacLeod said of her:

“… if we could remove her from her present environment without too much suffering on the part of Jane or her mother, much good could be done leading possibly to an adoption.”

307               The last three children were boys; in each case Mr MacLeod was of the opinion that it would be better for them to stay in their present environment.  As there was the possibility of a school opening at Wave Hill, he felt that their educational needs could therefore be met in the new school.  Furthermore, the boys would have a better opportunity of learning stock work.  But, as he pointed out, the situation could change if a boy did not show any desire to work with cattle.

308               Mr MacLeod was asked during the course of his evidence in chief:

“Do you recall what your instructions were as to what it was that you were to look out for in respect of half-coloured children?”

His answer was as follows:

“If they were being stood aside in the - in the camps and not given a - a proper place. Sometimes they were scoffed and scorned at in full-blooded Aboriginal camps, and sometimes they were not fed. Sometimes they were teased, so there were different problems with them.”

 

He added, in answer to a further question about the instructions that he had been given:

“Well, I think, overall we were (sic) at the best interests of the children and education potential, whether they could – whether they were getting a fair go in life, I suppose …”

It was his view that it was permissible to remove part Aboriginal children as long as it was in the best interests of the children.  He had a belief that children were never removed from those families where there was a father as well as a mother.  Furthermore, it was his evidence that he had never personally removed a child, even though he acknowledged that he had recommended removals.

309               Mr Vincent was asked if he knew how part Aboriginal children came to be placed in the institutions such as St Mary’s and Retta Dixon Home.  He replied:

“I knew some of the arrangements which were made.  Some were brought in by requests of their mothers; some were made by arrangements between patrol officers, the mother and the mission; some were brought in because of need for care.”

However, he explained that he had no personal involvement with children who were brought in at the request of their mothers.  Rather, he testified, that in those situations the mothers would deal directly with the missions or with or through patrol officers.  He was also aware that children were brought into court to be “declared in need of care”; the people who were involved in bringing those children to court were, so he said, patrol officers and welfare officers.

310               Speaking of part Aboriginal children, Mr Vincent testified that he was aware “that they were brought in on a mother’s request for education and care, to give them opportunity, and that would be done with the mother’s consent.  [O]thers were admitted, … by the mothers themselves directly conferring with the mission”.  Mr Vincent said that it was a matter for the “patrol officer to talk with the mother and obtain her consent and signature if necessary”; if the mother could not sign a document, the process was “a thumbprint”.  He could not recall any circumstances where a patrol officer brought a child in without the mother’s consent.  He suggested education was seen as important for those children for their own personal development and future opportunities.

311               Mr Milliken, talking of the procedures that were in place prior to 1957, said that any patrol officer’s reports about part Aboriginal children who had been located on stations would, in the first instance be considered by Mr Ted Evans as the Chief Welfare Officer.  In 1957, with his appointment as Administrative Officer, General Welfare, Mr Ray Vincent assumed that responsibility.  As Mr Gunner was taken from Utopia in 1956, it will be sufficient to have regard only to the circumstances as they existed in and prior to 1957.

312               If, in a particular case, Mr Evans considered it necessary to take some action, he would first refer the matter to the District Welfare Officer and if there was a recommendation that a child be removed, and Mr Evans agreed, a report would be prepared for the Administrator for him to consider approving a declaration that the child was an Aboriginal.  Some of the institutions including the Retta Dixon Home, but not St Mary’s, were located on Aboriginal Reserves:  people who were not Aboriginals were not allowed on those Reserves without a permit.  So if a child were to be admitted to such an institution, it was necessary for that child to be declared to be an Aboriginal so that he or she could live on the Aboriginal Reserve.

313               In cross-examination it was put to Mr Milliken that in 1955, when he joined the Native Affairs Branch, there was a realisation within the Branch that if half-caste children from a traditional Aboriginal society were to make any progress in school, they had to be brought in before school age.  His answer, which was not further explored, was:

“Coming from native camps – we’re not talking about missions or settlements, no, okay.  I guess that was the presumption, that would have been the presumption.”

314               His answer might indicate that the Branch recognised what it thought to be the “desirability of removing children of such tender years”, but there was no evidence that this was a practice – either wide-spread or occasional – that was in force in 1955.  That is not to deny that there was such a practice; it only means that no evidence of the application or implementation of any such practice was put before the Court.

315               Mr Milliken said that he was aware that many children were placed in institutions at the request of their parents and that some of them contributed to the costs of their child’s upkeep.  He said that education was sought by many Aboriginal people.  Others were placed there by order of the Children’s Court; yet again there were others of whom Mr Milliken said:

“The - then there were children who had been - they had been taken from - I use the word taken - from parents and usually by negotiation with those parents, and they were being cared for in those homes at Government expense.”

Mr Milliken’s use of the words “usually by negotiation” indicated that there could have been other cases where there were no negotiations or where negotiations had failed but children had still been taken.  At a later stage during his evidence in chief, Mr Milliken was asked:

“Were children to be taken where the mother did not consent?”

After some thought, Mr Milliken replied:

“… I could imagine that there would have been cases where against a mother’s wish I might have directed that a child be transferred but that would be a rarity.”

He added however, that he, personally, had never done so.  According to Mr Milliken, a part Aboriginal child would only be brought into an institution after there had been prior consultation with his or her mother.  His evidence on this subject was as follows:

“if a patrol officer on his visits saw a part-Aboriginal child whom he considered could profit from being transferred to an institution, he would raise the matter with the - usually with the mother or whoever was the carer and if there was some interest expressed in the child being educated, then he would work with the parent hoping that he would - I use the word ‘hoping’ - if there was an expression of interest that the parent would agree to the transfer of the child.”

316               It was Mr Milliken’s evidence that the Welfare Branch was alert to the educational needs of the part Aboriginal children; he said that the Branch was also aware “that their paternity in most cases could have caused problems within the tribe”.

317               The subject of parental consent was officially addressed in the Annual Report for 1961-1962 of the Northern Territory.  After identifying the four institutions for part Aboriginal children, the Administrator wrote:

“These homes accommodate children committed to the care of the Director of Child Welfare; children placed by parents for various reasons; and children of Aboriginal mothers and unknown non-Aboriginal fathers who have, with the mothers’ consent, been transferred from Aboriginal camps throughout the Territory.”

318               According to the evidence of Mr Milliken, that statement was accurate at the time and had accurately stated the position since his arrival in the Territory in 1955.

319               Mr Milliken rejected any suggestion that in his time in the Territory from 1955, there was a blanket policy of removal of part Aboriginal children.  He also rejected the proposition that, in his time, there were policies that divorced part Aboriginal children, who were in institutions, from their native background and that prevented part Aboriginal children from returning to their homes during holidays.  However, Mr Milliken agreed that, while there were no guidelines that would have prevented a part Aboriginal child from pursuing his or her own culture, it would have surprised him if a child could have pursued an Aboriginal culture within the confines of an institution.  He also said that the Welfare Branch never attempted to prevent members of a child’s family or community from visiting the child at the institution.

320               Mr Les Wilson testified that, in his thirty years with the Branch, he was never involved in the removal of a part Aboriginal child from the child’s family or community, although he did acknowledge that he “was aware that there was such a practice … it was just sort of common knowledge, I guess.  [We] spoke about these things, patrol officers spoke about it, we spoke about it”.  Asked what his understanding for the reasons of the practice were, Mr Wilson replied:

“In a traditional society and there was a part-coloured Aboriginal born to – child born to a full-blood woman in the tribal – you know, in the tribal situation, that if – if that child wasn’t accepted or their mother was being ostracised and she couldn’t properly look after it or join in the – in the tribal sense properly and she was ostracised by that community and the people – and the child wasn’t looked after or – I think the child’s interest was the main thing and the main thing about anybody removing a child.  That was my understanding of it.”

I think that it would be reasonable to find that Mr Wilson was saying that removals of part Aboriginal children were limited to cases of rejection or neglect.  Mr Wilson was later asked whether he had ever heard patrol officers suggest that their most detested task was the removal of part Aboriginal children from their families, and his answer was:

“Yes, if they spoke of that at all, I’d say that it was quite traumatic if they had to do that sort of thing.”

The Relationship between the Commonwealth and the Missions

321               One of the central issues in this case was whether the Native Affairs Branch (and later the Welfare Branch) exercised any, and if so what, power or control over the Retta Dixon Home and St Mary’s Hostel.  To answer that question it will be necessary, while bearing in mind the contents of the legislation, to refer to the evidence that has touched upon that subject.

322               The subjects of control and appointment of staff were addressed in the first annual report of Mr Driver as Administrator; he wrote in respect of the 1946-1947 financial year:

“The St Mary’s Church of England Hostel at Alice Springs was declared an Aboriginal Institution for the maintenance, custody and care of half-castes in December this year, and under the care of Deaconess Heath has rendered excellent service to half-caste children of Alice Springs.  This hostel is controlled by the Australian Board of Missions.

The Aborigines Inland Mission has established a half-caste mission and creche at the Bagot Aboriginal Reserve and this reserve also functions as a hostel for half-caste women employed in the Darwin area.  Miss Shankelton has rendered valuable service to this community, both in the capacity of Superintendent of the Mission and as Native Welfare Worker.  Native Affairs Branch is responsible for the rationing and clothing of the inmates, whilst provision of staff is the Mission’s responsibility.”

323               In a letter dated 9 July 1954, the Administrator of the day, Mr Wise, wrote the Secretary, Department of Territories in Canberra.  One of his statements in that letter addressed this question.  Writing about his dissatisfaction with the state of affairs at the Retta Dixon Home he raised the issue of “control”:

“If we are to control these children in a home where fundamentals of hygiene, moral training and social adjustments are to be dominant the Gawler proposal appears to be well on the way towards a solution.”

324               Another example of the control that the Welfare Branch exercised over the institutions can be gained from the contents of a memorandum written by Mr Giese, the Director of Welfare, to the Acting Administrator on 6 February 1956.  Under the heading “Corporal Punishment of Wards at Retta Dixon Home” Mr Giese wrote:

“I then informed Mr Stretton that I had no authority to authorise corporal punishment of Wards, that he had no authority to carry out corporal punishment of Wards and that as legal guardian of Wards if cases of corporal punishment of Wards came to my notice I had a duty to see that appropriate action was taken against the person inflicting the corporal punishment.”

Although Mr Giese did not spell out what would amount to “appropriate action”, the contents of his memorandum indicated that he was of the opinion that the Welfare Branch exercised a strong measure of control over the institutions.  Admittedly, this view was not shared by the institutions, for Mr Giese went on to report to the Acting Administrator that:

“Mr Stretton vigorously contested my right to interfere in the affairs of the Home to the extent of threatening action in the event of cases of corporal punishment being brought to my notice.”

325               During the course of his cross-examination, the Rev Egerton Long was reminded of the action of Mr McCaffrey when he ordered a Mr Stanley Matthews, a Retta Dixon Missionary, off the Bagot Reserve.  It was put to Mr Long that Mr McCaffrey’s action was indicative of the regulation or oversight of the Retta Dixon Home by the officials of the Native Affairs Branch and later by officials of the Welfare Branch.  Mr Long responded by saying:

“Well, certainly there was oversight, liaison, discussions and so on all the way through, yes, I agree with that.”

326               In a submission to Cabinet dated 11 March 1958, Sir Paul Hasluck wrote:

“The Commonwealth Government is responsible for the care, welfare, education and advancement of native, part-coloured and State children in the Northern Territory and has found it convenient and economic to use the services of the Christian Missions in part for this work for which the Administration pays operational subsidies and gives assistance towards the purchase of capital items.”

327               The Northern Territory Report for 1960-1961 referred to the provision of accommodation for part Aboriginal children in the four institutions; the Retta Dixon Home; St Mary’s Hostel; Croker Island; and Garden Point.  These were described as “subsidized by the Government and conducted by various church bodies in close co-operation with the Welfare Branch”.  The report also referred to the continuing transfer to one or other of the States of “selected part-Aboriginal children for education and training”.  The Northern Territory report for the following financial year, 1961-1962, had this to say about institutions for part Aboriginal children:

“There are four homes for part-Aboriginal children in the Northern Territory conducted by church bodies and subsidized by the Government.  These homes accommodate children committed to the care of the Director of Child Welfare; children placed by parents for various reasons; and children of Aboriginal mothers and unknown non-Aboriginal fathers who have, with the mother’s consent, been transferred from Aboriginal camps throughout the Territory.”

328               As is evident from the answers that he gave during the course of his cross-examination, Mr Vincent accepted that the Director of Welfare retained a measure of control over the part Aboriginal children who were resident in institutions.  For example he said:

“When a child goes into a home there’s a certain delegation of responsibility to the people of the home.  While there was delegation the Director would retain his position as the State – that the child was still a State home, (sic) but they would be acting in loco parentis.”

It was later put to Mr Vincent that in so far as the children who were at St Mary’s were the responsibility of the Director of Welfare, the Director could have taken all those children away from St Mary’s.  Mr Vincent replied:

“He could have withdrawn them, but he would also have to consider what he would do with them.”


329               Mr Gubbins, during the course of his evidence, made an interesting observation on this topic.  He explained that, while stationed at Alice Springs in the mid to late 1940s, he often visited the Hermannsburg Mission and the Areyonga Settlement, which was an outstation of the mission.  He recalled those places as having some Government assistance, but they had a mission lease and were substantially self sufficient.  With respect to Haasts Bluff, he testified that it was established with government buildings, but that missionaries from Hermannsburg Mission had “manned it”.  Asked why missionaries, as opposed to government personnel were running government settlements, Mr Gubbins replied that there were no government personnel available and the missionaries were “willing to do it and wanted to do it”.  He also explained that his purpose in attending at Hermannsburg and other mission stations was to check on the numbers of people who were being cared for at the mission.  The missions had government support, such as child endowment.  It was therefore necessary to make regular six monthly checks so that the Branch could maintain accurate records.

330               Mr Milliken was aware that reports on institutions that were caring for children were received by the Welfare Branch from time to time, but he had no official part to play in respect of them.  They would usually be prepared by a welfare officer or a District Welfare Officer and would be processed, either through Mr Ray Vincent or Mr Martin Ford, to Mr Giese.  Mr Milliken was also aware that the Welfare Branch had a supervisory role over the institutions.  He described it as a “monitoring of broad activities and monitoring of philosophy and programs”.  When asked whether the Welfare Branch had authority to give directions to the management of an institution about its day to day operations, Mr Milliken replied:

“In a very general way this could have been done.  I was never sure that the authority existed in fact.”

Despite this uncertainty, Mr Milliken was quite certain that the Welfare Branch played no part in the selection of staff for the institutions, even though there were occasions when the Branch made known its objections to some members of an institution’s staff; Mr Milliken was here referring to Mr Stan Matthews and Mr Des Walter.  He had acquired knowledge of the circumstances surrounding those men subsequent to his arrival in Darwin.  Mr Worthy was asked during the course of his evidence in chief questions about the staffing of personnel at the missions:

“During the period of time that you held the responsibility of administrative officer, general welfare, was there any input at all from your office in the appointment of staff at any of these institutions? --- The short answer is no. The institutions were autonomous in that they appointed staff, they did not have to obtain approval from the Welfare Branch, nor consent for the particular staff. They appointed the staff, irrespective of who it was, this applied to Garden Point to the teaching nuns who were appointed there, to the people who went to Croker, to Retta Dixon or to St Mary’s. There was no - the only place at which we came in was supervision of how it was run. As long as they met what were very minimum standards we had to accept in practice whom they appointed, not that we were satisfied by any means.”

331               A duty statement for the Assistant Director of Welfare (Southern Division) included an entry that suggested that the Welfare Branch did not have any rights of interference in the operation of the institutions.  The relevant entry read:

“Maintain a close association with church and other community bodies with respect to the establishment, maintenance and operation of hostels and institutions for deprived children, aged, and mentally ill.”

The operative passage “maintain a close association” did not give the impression that the Branch expected to assert any measure of control.

332               Mr Milliken said that if an institution was located on an Aboriginal Reserve – as was the Retta Dixon Home – the Branch could achieve a measure of control over the institution’s staff by withdrawing a staff member’s permit to be on the Reserve.  Apart from that however, it was Mr Milliken’s view that the Branch could not do anything; in particular, it could not stop subsidy payments or cancel the institution’s right of occupancy because “we had nowhere for the children to go”.  Mr Milliken’s opinion on the Branch’s lack of control over staff movements in institutions coincided with the views expressed by the Administrator, Mr Archer, in his letter to the Secretary, Department of Territories dated 8 December 1955.  That was a letter in which the Administrator lamented the decision of the Church authorities to ask for Sister Eileen’s resignation.  The views of the Administrator were forthright, but, in my opinion, accurate:

“However, in my view, the Church authorities have an unquestionable right to make and terminate appointments to their staff; and the decision having been made by the Bishop of Carpentaria to require Sister Eileen’s resignation, the matter is not one on which the Administration could consider interfering; or for that matter having any views at all.

As I see it, the Administration’s function and responsibility is to ensure that the Hostel is run efficiently for the purpose for which it was established and for which it is subsidised.  If, because of shortages or lack of quality in staff, or for any other reason the Administration is not fully satisfied that the Hostel is being conducted satisfactorily for its purpose, then its only course is to take up the matter directly with the Church authorities, who must either discharge the responsibilities they have accepted and for which they are being subsidised, or else step aside and allow the Administration to take over these responsibilities under some other arrangement.”

333               Mr Milliken was referred to the letter from Sir Paul Hasluck to his Departmental Secretary dated 4 January 1956 where he had written:

“The Government has a very definite responsibility to ensure the efficient management of this institution, both because of the Government’s overall responsibility in respect of the welfare of coloured people and because of the substantial financial contribution the Government has made …”

Mr Milliken agreed that the words “define reasonably well” his understanding of the Government’s responsibility.  Mr Milliken also agreed with the further proposition that was put to him in cross-examination to the effect that the Director of Welfare had the responsibility to ensure “that the conditions and the supervision and the staffing at St Mary’s were adequate and proper at all times”.  The cross-examiner referred to this same subject at a later stage of the cross-examination and got the same response from Mr Milliken; he considered that the Welfare Branch had a substantial responsibility for St Mary’s.

334               Captain Steep explained his understanding of the Church’s policy in respect of St Mary’s in these terms:

“… they had developed the hostel, going back as far as 1946, for the express purpose of giving an opportunity for the part-Aborigine children throughout the Territory who lived out on stations and away from the town to come in and a place to board while they had education, that was the idea, the initial idea.”

As distinct from the Church’s policy, he said that he obtained his understanding of Government policy from Mr McCoy and Mrs Ballagh.  He described it this way:

“… it was the policy of the Welfare Department to support the church in this situation and provide finance for the provision of the hostel.  At that time they provided - the Welfare Branch and administration, I don’t know quite where the dividing line came, but the administration and the Welfare Branch provided nine-tenths of the running costs of the hostel and the church provided one-tenth.”

335               Captain Steep acknowledged that, initially, he did not appreciate the nature of the involvement of the Welfare Branch in the operations of St Mary’s.  Archdeacon Rogers had told him, on his arrival at Alice Springs, that the Welfare Branch had “a role to play” but Captain Steep nevertheless believed that “it was something that the church was running”.  However, as he said, he came to realise that the Welfare Branch had “a very deep commitment to the children”; he added that the officers of the Welfare Branch were quick to tell him of his mistakes.  Captain Steep came to realise that he had to keep in touch with the Welfare Branch:

“I realised that I had to tell them, you know, what was happening and keep them in touch with everything.”

336               It was advanced as part of the applicants’ case, that the Director of Native Affairs (and later the Director of Welfare) exercised effective control over the institutions.  The Director did have one particular power and there was evidence in the trial that it was exercised in an appropriate case.  The Retta Dixon Home was located within the Bagot Aboriginal Reserve.  Under s 19 of the Aboriginals Ordinance, only persons prescribed under the Ordinance and persons authorised by the Director could enter and remain on a Reserve.  In late July 1954, Acting Director McCaffrey exercised his powers in respect of Mr Stan Matthews.  Mr McCaffrey was satisfied that Mr Matthews had used excessive corporal punishment on three boys from the Home; he ordered Mr Matthews to leave the Reserve.  Effectively that meant that Mr McCaffrey was instrumental in forcing Mr Matthews to leave Retta Dixon.  On the other hand, St Mary’s was not situated on a Reserve; hence that same power was not available to the Director over the staff at St Mary’s.

337               In addition to the power that was reposed in the Director with respect to people on Reserves, the Administrator also had the power to appoint the Superintendent of an institution such as the Retta Dixon Home or St Mary’s Hostel.  In the case of Mr Des Walter, the Administrator’s power was about to be invoked by the Acting Director to frustrate a proposal to have Mr Walter take the position of Assistant Superintendent in Miss Shankelton’s absence.  Mr McCaffrey wrote the Aborigines Inland Mission by letter dated 24 November 1954 saying:

“… I do not consider that Mr Walter has demonstrated that he is capable of controlling the Home.”

That ended the matter; Mr McCaffrey did not have to enlist the Administrator’s aid.

338               It was put to Mr Ford that the Director had the power to terminate the employment of the staff at the Retta Dixon Home; Mr Ford rejected that assertion and Mr Milliken, in his examination in chief, supported what Mr Ford had said.

339               During the course of his cross-examination, Mr Ford was shown a copy of Mr McCaffrey’s memorandum to the Administrator dated 28 July 1954.  That was the memorandum in which he advised that he had ordered Mr Stan Matthews off the Bagot Reserve.  Counsel for the applicants put to Mr Ford that Mr McCaffrey’s conduct was illustrative of the power of the Director over an institution such as the Retta Dixon Home:

“What I want to suggest to you, Mr Ford, that that sort of power there carried out by the Acting Director of Native Affairs was the sort of power that you understood that he had or that the position had in relation to staff at an institution such as Retta Dixon?--- No, I can’t comment on that.

Why can’t you comment on that?---The staff were employed by the mission organisation, not by Mr McCaffrey or Mr Giese.  The power to hire and fire were with them, not with the Director of Native Affairs.  He may influence the authorities in the case of a situation such as this, but he hasn’t the power to sack him.

So from your field work you can say that, can you?---I have not done any field work.

Well, you see where Mr McCaffrey has informed the Director or the Superintendent of the Retta Dixon Home he requires Mr Matthews off the premises, I suggest that that is a power that the Director had in relation to such an employee at the Retta Dixon Home?---You’ll notice that it’s Bagot Aboriginal Reserve.

Okay.  Well, the Bagot Aboriginal Reserve, is that of any significance to you?---It is, because the Director of Native Affairs properly had the power to require a person removed from the reserve if he is misbehaving himself, but not sack him from the organisation.”

Mr Vincent was of the same opinion as Mr Ford.  He recollected that there was “some anxiety” in the Welfare Branch about the staff at St Mary’s but, as he said:

“That was a church matter, of course.”

340               Mr Giese wrote an interesting letter dated 17 July 1963 to Mr Penhall in his capacity as the Assistant Director Southern Division with respect to St Mary’s Hostel.  Mr Giese acknowledged receipt of some reports from the Alice Springs Branch that related to inspections and comments about St Mary’s.  He then said:

“Under the circumstances your Welfare Officer should be instructed to be particularly careful to avoid appearing to assume any responsibility for the management of St Mary’s.  The Welfare Branch is not responsible for the management of the Children’s Hostels, although we may require certain standards to be met.”

341               The applicants’ witness, Mr Reg Worthy, also made it clear, during the course of his evidence in chief, that the Welfare Branch was well aware of the difference between supervision and control.  The following passage in his evidence was quite revealing:

“Mr Rush: Mr Worthy, did you – I want to direct this question at St Mary’s – did you interfere with the day-to-day running at St Mary’s?---Never.

Why didn’t you?---That wasn’t our role.

Who told you or informed you of your role?---Mr Giese.

What did he say in relation to that question I asked about interfering with the day-to-day conduct of St Mary’s, for example?---My instructions were quite clear that as the officer responsible to supervise those institutions this would apply to the policy directions as laid down and given to them, each one, that they were responsible to carry it out, that under no circumstance were we to interfere with how they did anything.  We were to draw to their attention any shortcomings.  As a matter of fact I can recall quite clearly one of the welfare officers in Alice Springs who did visit St Mary’s on one occasion and apparently instruct somebody to do something and I can recall writing a letter back to Les Penhall asking him to ensure that this did not happen again, that it was not our role to run the institution.”

342               In cross-examination Mr Milliken agreed that the powers of the Director under the Aboriginals Ordinance and, later, under the Welfare Ordinance were very wide powers.  He said that they were exercised in accordance with the policy of the Government.  I did not understand him to mean, in making that statement, that the statutory powers of the Director were thereby circumscribed by matters of policy.  On the contrary, he explained that, in his time in the Welfare Branch, there was one occasion when he, as the Acting Director, found himself in a position when he had to remind the Minister of the day that the relevant power in the Ordinance was the power of the Director and not the power of the Minister.  He also was aware of the occasion when Sir Paul Hasluck overruled Mr Giese’s stand on corporal punishment but, as he said, that was not the subject of the exercise of a statutory power.  Subject to the first mentioned incident, Mr Milliken said that he could not remember any other occasion when any Minister attempted to interfere with the statutory powers of the Director.

343               Officers of the Native Affairs Branch and, later, officers of the Welfare Branch made periodic visits to both the Retta Dixon Home and St Mary’s Hostel.  Those officers thereafter submitted written reports to their superiors, commenting upon a variety of matters, such as the conditions of the institutions, any staffing problems and the health and welfare of the children.  The evidence has established to my satisfaction, that neither institution was regarded by the authorities as satisfactory.  Due to its proximity to the Bagot Reserve, the Native Affairs Branch recognised from the early 1950s that the Retta Dixon Home was in an unsuitable location for children.  The amenities and staffing at St Mary’s Hostel were considered to be so bad that, at one stage, Mrs Ballagh recommended that the Branch not place any more children in the Hostel.

344               As can be seen from this summary of the written and oral evidence, the situation was not clear.  However, I feel that there is sufficient evidence to justify the following findings:

·                 there was no evidence that any Director, at any time, attempted to exercise a power of hiring or firing staff at institutions;

·                 on the contrary, the Native Affairs Branch and, later, the Welfare Branch recognised that that was the province of the institutions;

·                 on the other hand, the power of management and regulation that the Director of Native Affairs enjoyed over the Retta Dixon Home under the provisions of par 5(1)(e) of the 1918 Ordinance permitted the Director to involve himself with a measure of control over the day to day activities of the Retta Dixon Home; and

·                 I am also satisfied that there was a measure of control exercised by the Welfare Branch over the day to day activities of St Mary’s and that St Mary’s was aware of and accepted that control.  One example of the recognition of the control of the Director of Welfare is a letter of 6 December 1961 from Archdeacon Bott of St Mary’s Hostel.  In it, he wrote the Director saying “I wish to thank you for your permission to take the State children in our care inter-State for holidays”.  There were no statutory powers vested in the Commonwealth, the Director or any other officer to control the composition of the governing body of the institution.  Mr McCaffrey’s tactical use of the fact that the Retta Dixon Home was on an Aboriginal Reserve did not mean that he dismissed Mr Matthews from his employment.  It only meant that, by prohibiting Mr Matthews from staying on the Reserve, Mr McCaffrey effectively prevented him from carrying out his employment.  In the final analysis, the power that could have been exercised over an uncooperative institution would have extended to the Directors’ powers under ss 6 and 16 to remove the children to another institution or to have the Administrator revoke the declaration that the institution was an Aboriginal institution.

The Briginshaw Test

345               The Commonwealth has asserted that three of the allegations that have been made by the applicants are of the gravest and most serious kind.  It claimed that in each case the applicants should be called upon to adduce clear and cogent proof as required by the Briginshaw test.  In that case, an allegation of adultery had been made by a husband against his wife at a time when serious legal and moral consequences would flow from an adverse finding.

346               The applicants in this case bear the onus of proof and the ordinary standard of proof in civil litigation is proof on the balance of probabilities.  That onus will not change even though an applicant may be advancing an accusation of criminal behaviour or an accusation of grave immorality.  However, the strength of the evidence that may be required to establish a particular fact may vary according to the gravity of the fact to be proved.  That observation derives from what Dixon J had said in Briginshaw v Briginshaw [1938] 60 CLR 336 at 362 (“Briginshaw”):

“But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

347               The three allegations about which the Commonwealth complained were as follows:

348               the alleged policies of the Commonwealth with respect to part Aboriginal children.  As to this, the Commonwealth said that it has been accused of pursuing a policy of forcibly separating part Aboriginal children from their parents.  It said that it has been accused of destroying the relationship between the child and the child’s family and that it subjected the children “to a cruelty which is unsurpassed … in recent Australian history”.  Dramatic and frightening though such accusations may be, they were to be found more in counsel’s submissions and less in the evidence.  The evidence that was germane to this first allegation centred upon two principal issues:  first, the circumstances under which two children, Lorna Nelson and Peter Gunner left their families and went to reside in the Retta Dixon Home and St Mary’s Hostel respectively; secondly, the manner in which they were treated while they resided in those Homes.  There is a third issue, but it is one of pure law:  does the Commonwealth have any liability for any damages that the applicants may have suffered as a result of their removal and detention?  Normally, the fact that an applicant makes a serious accusation about a Government policy - and the purpose that is said to rest behind that policy - is not sufficient to raise the matter into the Briginshaw stratum of cases; were that to be otherwise, every dissident who had a complaint about the Government would be at risk.  But as the Commonwealth, in its final submissions has acknowledged, it is indisputable that the forced removal of children from their parents without good cause would have been morally wrong – not only on today’s standards but on the standards of the time when the removal occurred.  Its defence was that it did not, nor did any one for whom it was vicariously responsible, engage in any such act of removal or detention.  However, to allege, as both applicants alleged, that they were forcibly removed against their wishes and the wishes of their family without just cause is a most serious accusation.  The gravity of the accusation is self evident.  It is hard to imagine conduct that would have been more cruel or more callous.  The applicants, by their pleadings, have, in my opinion, lifted this particular issue to the level of Briginshaw by claiming that the Commonwealth treated them with contumelious disregard;

·                 the second allegation concerned a Mr Des Walter, the one-time missionary who worked at the Retta Dixon Home; Mrs Cubillo gave evidence that she was cruelly beaten by Mr Walter in circumstances, which if true, could have well led to a most serious charge of criminal assault.  The Commonwealth faced a claim that it was vicariously responsible for Mr Walter’s alleged behaviour; and

·                 the third allegation concerned a Mr Kevin Constable, the one-time missionary who worked at St Mary’s Hostel; Mr Gunner and other witnesses gave evidence that Mr Constable sexually assaulted them when they were small children in his care at St Mary’s.  The Commonwealth also faced a claim that it was vicariously responsible for Mr Constable’s alleged behaviour.

349               In considering the Briginshaw test, Mason CJ, Brennan, Deane and Gaudron JJ said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450 (“Neat Holdings”):

“On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.”

350               In G v H (1994) 181 CLR 387 at 399 Deane, Dawson and Gaudron JJ observed that not every case involves issues of importance and gravity in the Briginshaw sense.  But, they added that the “need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing”.  This does not then mean that where a serious allegation is in issue, the standard of proof required is higher; it means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred.  There are only two standards of proof, namely, proof upon the balance of probabilities and proof beyond reasonable doubt.  The notion of strict proof is not “some standard of persuasion which is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue, may, not must, be based upon a preponderance of probability”:  Cassell v R [2000] 169 ALR 439 at 443 per Gleeson CJ, Gaudron, McHugh and Gummow JJ.

351               In this case the accusations that were said to attract the Briginshaw test related to the conduct of persons who were not litigants in these proceedings; the accusation of adultery in Briginshaw, the accusation of fraud in Neat Holdings and the accusation of paternity in G v H were all made against the respondents in the proceedings.  Whilst not overlooking that the Commonwealth, as the respondent, was alleged to be vicariously liable for the conduct of Messrs Walter and Constable, the question is whether the Briginshaw test should be applied with respect to the conduct of a person who was not a party to the proceedings.  Unaided by authority, I would have thought that such a question would have to be answered strongly in the affirmative.  The rights of non-parties are equally deserving of protection as are the rights of litigants, yet non-parties are in a highly vulnerable position.  Unlike a litigant, they are not entitled to legal representation; they cannot mount a defence nor call witnesses to support them.  For those reasons I believe that the principles of Briginshaw have equal and like application to persons whether they are, or are not, parties to the litigation.  The industry of counsel did, however, turn up an authority on this issue which supports the conclusion that I have reached.  In Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103, the applicant sought to set aside an adverse decision of the Immigration Review Tribunal on the basis that its decision had been induced or affected by fraud.  The fraud was said to be that of a third party, one who was ill-disposed towards the applicant, who had fraudulently misled the Tribunal by giving it false information.  After referring to Briginshaw Lindgren J concluded that the applicant had to meet the Briginshaw test.  He said at 113:

“The standard of proof according to which Ms Wati must establish that the IRT’s decision to affirm the delegate’s decision was induced or affected by fraud is the civil one, usually referred to as ‘the balance of probabilities’.  But an allegation of fraud is a serious one not to be made lightly, and it is perhaps a particularly grave thing to allege, not only that a fraud was perpetrated against the victim of it, but that it was also practised on a court or tribunal conducting a hearing.”

More recently, the strength of that authority has been confirmed in Slayman v Minister for Immigration and Multicultural Affairs (Foster J, 12 August 1997, unreported); Susaki v Minister for Immigration and Multicultural Affairs [1999] FCA 196 at 6; and Jama v Minister for Immigration and Multicultural Affairs [2000] FCA 524 at 12.

352               In my opinion, it is incumbent on the applicants to meet the Briginshawtest with respect to the allegations that have been made about the conduct of Mr Walter and the conduct of Mr Constable.

The Rule in Jones v Dunkel

353               A party who, without explanation, fails to call, as a witness, a person whom he or she might reasonably be expected to call, can attract the application of the principle enunciated by Windeyer J in Jones v Dunkel (1959) 101 CLR 298.  Both the applicants and the Commonwealth seek to invoke the rule as a result of the absence of witnesses who were said to be material witnesses.  Whilst it is possible to state the rule in general terms, its application must be considered with regard to each situation in which a witness is alleged to be absent; the rule is not to be used to complete gaps in the evidence or to convert conjecture into inference.  The rule is that the unexplained failure of a party to give evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party’s case, so entitling a court the more readily to draw an inference against that party which might otherwise fairly be drawn from the evidence which was adduced.  In essence, an inference may be drawn contrary to the interests of a party who, although having it within his or her power to provide or give evidence on some issue, declines to do so.

354               That principle has recently been succinctly stated by the High Court in RPS v R [2000] 168 ALR 729 at 737:

“In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence.  It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case:  Jones v Dunkel (1959) 101 CLR 298 at 312 per Windeyer J and that ‘where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.’”

355               In Cross on Evidence, Butterworths, [4th Ed] D Byrne, JD Heydon, vol 1 at [1215] it is said:

[t]he rule [in Jones v Dunkel] only applies where a party is ‘required to explain or contradict’ something.  What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case.  No inference can be drawn unless evidence is given of facts ‘requiring an answer’.” (footnotes omitted)

That passage from Cross on Evidence was quoted with approval in the joint judgment of Gleeson CJ and McHugh J in Schillenberg v Tunnell Holdings Pty Ltd [2000] 170 ALR 594 at 608-609.

356               The rule cannot be applied to the non calling of a witness unless it would be natural for the party to call the witness, or the party might reasonably be expected to call the witness: O’Donnell v Reichard [1975] VR 916 at 929; or as Glass JA said in Payne v Parker [1976] 1 NSWLR 191 at 201-202:

“the missing witness would be expected to be called by one party rather than the other, … is also described as existing where it would be natural for one party to produce the witness:  Wigmore, par. 286, or the witness would be expected to be available to one party rather than the other or where the circumstances excuse one party from calling the witness but require the other party to call him, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness’ knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other.  It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary.  If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied.”  (footnotes omitted)

However, the rule has no application if the failure to call the witness is explained.  For example a reasonable explanation for non attendance is illness or other unavailability, or by loss of memory or refusal to waive privilege: Payne v Parker.  Any explanation must be established by evidence  and is not merely to be presumed from the passage of time: West v Government Insurance Office NSW (1981) 148 CLR 62 at 70.  Furthermore, the onus of establishing unavailability is on the party against whom the rule in Jones v Dunkel operates: Smith v Samuels (1976) 12 SASR 573.  Thus I was satisfied, as a result of the medical evidence that was presented by the Commonwealth, that illness prevented Mr Harry Giese from giving evidence.  As the Director of Welfare at the time of Peter Gunner’s removal, he had the potential to be a most important witness.  In the normal course of events, one would have expected the Commonwealth to call him as a witness in their defence.

357               The unexplained failure by a party to call witnesses may, not must, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party’s case: Jones v Dunkel at 308, 312 and 320-321.  See also Brandi v Mingot (1976) 12 ALR 551 at 559-560 and Spence v Demasi (1988) 48 SASR 536.  But such failure would rarely give rise to a positive inference that any evidence would necessarily have been adverse to the party failing to call that evidence.  The appropriate inference to draw is a question of fact to be answered by reference to all the circumstances of the case and perhaps no adverse inference at all may be appropriate: Spence v Demasi and Packer v Cameron (1989) 54 SASR 246.

358               The significance to be attributed to the fact that a witness did not give evidence will, in the end, depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party who was expected to call him feared to do so.  But there may be circumstances in which such an inference is not available or, if available, is of little significance.  For example the party “may not be in a position to call the witness.  [H]e may not be sufficiently aware of what the witness would say to warrant the inference that, in the relevant sense, he feared to call him”: Fabre v Arenales (1992) 27 NSWLR 437 at 449-450.

359               In summary, the authorities indicate that one cannot normally infer that absent evidence would necessarily have been adverse to a party, but may infer that it would not have assisted that party’s case.  Nevertheless, the rule does not prevent an inference that is favourable to the party who has failed to call the witness from being drawn, as other evidence may justify the drawing of the inference: Flack v Chairperson, National Crime Authority (1997) 150 ALR 153 at 164 per Hill J.

360               There are two further aspects of the rule that are of relevance to this matter.  First, in Cross on Evidence at paragraph [1210] it is remarked that the rule does not operate to require a party to give merely cumulative evidence, such that if five people attended a relevant meeting, and some are called, no Jones v Dunkel inference can normally arise in respect of those who are not.  Essentially, the rule does not compel time to be wasted by calling unnecessary witnesses.  However, that statement by no means provides a shield against a justifiable criticism that a party deliberately kept less favourable witnesses from testifying.  A further aspect of the rule is that the evidence of the missing witness must be such as would have elucidated a matter, in that the witness must have some knowledge of the event or issue.  This characteristic of the rule was explained by Glass JA in Payne v Parker at 202:

“… the condition is made out when the witness is presumably able to put a true complexion on the facts, might have proved the contrary, would have had a close knowledge of the facts, or where it appears that he had knowledge.  I would think it insufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge.  Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him.”  (footnotes omitted)

361               Finally, it must be remembered that the principle in Jones v Dunkel may apply to both parties.  That being so, the operation of the principle is not that the failure of one party excuses the failure of the other.  The position is that competing inferences that the uncalled evidence would not have assisted either side arises and the trier of fact must then consider the evidence that is before it in the light of those inferences:  Brandi v Mingot.

362               In my opinion, to use the failure to call a witness against a party, I must be satisfied before drawing an inference, that the witness was there to see or hear something of which he or she can give evidence and that the witness was available in the sense that his or her absence has not been satisfactorily explained.  However, even though I am satisfied about the availability of a witness and even though there has been no explanation for his or her absence, I may, but I am not bound to draw an inference adverse to the relevant party.

Lorna Nelson Cubillo and The Retta Dixon Home

363               Before considering the evidence of Mrs Cubillo, I propose to discuss the evidence of Mr Penhall.  Because of the part that he played in her removal from Phillip Creek, it is of value to know about the man and his subsequent career in the Native Affairs Branch.  His evidence was also of assistance in understanding the operations of the Branch and the work of patrol officers.

364               Mr Penhall, who was born in 1923, was aged seventy-six when giving his evidence; he commenced working in the Commonwealth Public Service in 1938.  In 1941, he was appointed a clerk with the Native Affairs Branch in the Northern Territory Administration in Darwin.  Apart from war service, Mr Penhall stayed in the public service in Native Affairs (except for a period of about six years) until his retirement in 1983.  At the time of his appointment in 1941, Mr Penhall said that there were only two patrol officers with the Native Affairs Branch who were stationed in Darwin – Gordon Sweeney and Bill Harney.  Mr Penhall was in Darwin in February 1942 when the Japanese commenced bombing the town.  He, with others, was given various tasks, one of which was to salvage as many records as possible.  But, as he said, it was not possible to save everything; numerous documents and official papers were lost.  After his discharge from the army in 1946, Mr Penhall was posted to the Native Affairs Branch in Alice Springs, first as a clerk and, shortly after, as a cadet patrol officer.  At about the same time, three further cadet patrol officers were appointed:  Messrs Fred Gubbins, Syd Kyle‑Little and Ted Evans.  The Territory was divided into two divisions – the northern division which covered the area from Tennant Creek up to and beyond Darwin and the southern division which covered the area south of Tennant Creek down to Alice Springs and the South Australian border.

365               When Mr Penhall commenced work as a cadet patrol officer there was already in existence a system of ration depots for Aboriginal and part Aboriginal people.  Rations were limited to such basics as tea, flour, sugar, golden syrup and tobacco.  Originally, all police stations were ration depots but, with time, that changed.  The police stations ceased to be ration depots and that responsibility was taken up by the Native Affairs Branch which established depots at existing Aboriginal Settlements.  Missions that were run by religious organisations had, at one time also been ration depots, but some of those were phased out.  For example, Phillip Creek was eventually taken over from the Aborigines Inland Mission in the early 1950s and run by the Commonwealth.  When asked what effect those changes had on the Aboriginal population, Mr Penhall gave the following evidence:

“Well, that certainly affected them inasmuch as a number of them stayed there, but of course a number of them then started to work and these ration depots developed from being a ration depot into almost a complete settlement with all facilities.  A gradual improvement in the conditions in various areas.

What sort of facilities developed there? --- Well, the first one of course was health facilities and then we tried to get the education facilities operating, but also you had to have hygiene workers and mechanics and this sort of – these sort of people to assist in running the place and also trying to teach the Aboriginals how to do it themselves.

Yes.  When did all of that occur? --- Well, it was a gradual sort of progression, you know.  It took a number of years to establish and to become, well, become effective.”

366               At the time of Mr Penhall’s posting to Alice Springs in 1946, Gordon Sweeney was stationed there as one of the patrol officers.  Mr Penhall had a very high opinion of Mr Sweeney.  He referred to him as a “very compassionate man” who “just worked basically for the benefit of Aboriginals”.  Mr Penhall commenced learning the work of a patrol officer by accompanying Mr Sweeney on his patrols throughout the district.  He said that Bill Harney was also stationed in Alice Springs in 1946 as was Barney McGinness who was employed as a driver.  Mr Penhall spoke very highly of Bill Harney and the Commonwealth’s witness Creed Lovegrove.  He referred to both of them in their work as patrol officers as very compassionate men.  Another cadet patrol officer who was also stationed in Alice Springs at the time of Mr Penhall’s posting was Fred Gubbins.  Mr Gubbins was also a witness for the Commonwealth in these proceedings.  In 1946, Ted Evans and Syd Kyle-Little were cadet patrol officers stationed in Darwin and Ron Ryan joined the Darwin Branch as a patrol officer in 1949.  Speaking of Ted Evans, Mr Penhall said “his sole interest in life was helping and working with Aboriginal people”.  He said much the same of Ron Ryan.

367               In 1948 Mr Penhall, together with Ted Evans and Syd Kyle-Little, attended a twelve month course at the Australian School of Pacific Administration.  That course had been established initially to train officers for patrol work in New Guinea but it was expanded sometime in the 1950s to include patrol officers who were working in the Northern Territory.  Subjects that he studied included anthropology, linguistics, criminal law and tropical medicine.  It is of some interest to mention the need for studies in tropical medicine.  Mr Penhall explained that in their work, patrol officers came across such diseases as leprosy, malaria and yaws; they were expected to administer first aid which, in the case of yaws, included a series of injections.  Criminal law was studied because in the 1940s and 1950s an Aboriginal person, charged with a criminal offence, had to be represented by a patrol officer unless he or she was legally represented.  These were duties that were additional to their principal tasks which centred upon the inspection and supervision of Aboriginal communities and pastoral properties where Aboriginal persons were employed.

368               Mr Penhall passed the course at the Australian School of Pacific Administration and returned to work at Alice Springs as a patrol officer.  At that time, his immediate superior in the Alice Springs Branch was the Acting District Welfare Officer, Mr Billy McCoy.  In 1955 Mr Penhall was promoted to the position of District Welfare Officer in Darwin, a position previously held by his mentor, Gordon Sweeney.  However, his work in Darwin did not include Retta Dixon Home as part of his responsibilities.

369               With the change in the legislation and the introduction of the Welfare Ordinance, the Native Affairs Branch became known as the Welfare Branch and the Welfare Branch was divided into two sections:  “General Welfare” and “Aboriginal Welfare”.

370               It may be of assistance if I explained at this stage the difference in duties between patrol officers and welfare officers.  Although the Welfare Ordinance did not come into operation until May 1957, some female personnel had earlier been appointed welfare officers to carry out general welfare work.  According to Mr Jeremy Long, the female welfare officers were responsible, primarily, for welfare work in the towns among the white population and those of mixed Aboriginal or other blood.

371               Mrs Moy, during the course of her cross-examination, agreed that the welfare of full blood Aboriginals was dealt with by patrol officers whilst, in the main, the welfare officers cared for part Aboriginals.  Mr Lovegrove was asked to explain the difference in duties between welfare officers and patrol officers.  He answered by saying that the patrol officers were largely “responsible for matters relating to full-blood Aboriginal people” whilst the welfare officers dealt with matters of “general welfare”, which included the welfare of children “in the wider community” and the inspections and reports on institutions.  He also said that, as a patrol officer, he was expected to try to persuade the mothers of the part Aboriginal children that their children “would be better off if they went somewhere where they could get an education”.  The following exchange then took place between counsel for the Commonwealth and Mr Lovegrove:

“Did you attend to that duty? --- Not really.

No? --- I mean, I did talk to Aboriginal mothers about their part Aboriginal kids and about their education, but I didn't do any more than that about it.”

372               Mr Lovegrove submitted a report dated 25 February 1954.  It summarised his activities for the twelve months that ended on 31 December 1953.  Under the heading:  “Part Aboriginal Children”, he wrote:

“On the stations visited by me there were 27 part-aboriginal children (10 male and 17 female) under the age of ten years.  Of these – 4 males and 5 females are the children of part aboriginal-full blood combination and are living with their father and mother as a family unit.  …

Unfortunately none of the remaining children were voluntarily offered for removal to an institution although in each case the mother was approached and the advisability of such a move was explained to her.  For the five years prior to 1953 this district was patrolled by the one Patrol Officer and the natives came to know him well and were in many cases, willing to hand their part-aboriginal children to him for removal as he thought fit.  I came to them as a comparative stranger and I can quite realise their unwillingness to afford me the same, rather dubious, privilege.”

Mr Lovegrove explained his reference to a “rather dubious privilege” this way:

“Well, I’m not the sort of person who would’ve enjoyed taking a child away from its family, unless it was - unless there was some compelling reason, welfare-wise, that it should be done.”

373               Based in part upon his experience as a patrol officer and based in part upon his studies as a research officer, Mr Jeremy Long was able to offer assistance in explaining the work of a patrol officer.  In the first place, there was a need for patrol officers to understand what was happening in the Aboriginal communities and to explain those happenings to others in the Administration.  There was a separate need to inspect conditions of employment on the cattle stations and to act as a “go-between” on behalf of the Aboriginal people with the station owners and, also, with the Government.  One matter of significance to which Mr Long referred was the subject of culture.  As he said, there was a radical difference and a huge cultural gap between the former nomadic hunter and the commercial economy into which the Aborigines were moving as employees on cattle stations.  On the other hand, as Mr Long acknowledged in cross-examination, he was aware of cases where part Aboriginal people had become successfully integrated into an Aboriginal community; he agreed that Sonny Jim Kunoth, whose circumstances as a part Aboriginal child at Utopia Station are discussed later in these reasons, was an example of that integration.

374               Mrs Moy agreed that the welfare of wards was a very important consideration for the Welfare Branch and that the Welfare Branch had a responsibility to look after wards.  Her attention was directed to a letter that was undated, but which the parties agreed had been written some time in 1954 by Mr McCaffrey in his capacity as the Acting Director of Native Affairs.  The letter was addressed to Miss Shankelton and it concerned a girl called Mabel.  Mr McCaffrey wrote that Mabel was a ward of his Branch, having been committed to the Retta Dixon Home on 28 February 1953.  Mabel was pregnant and Miss Shankelton had written her father about her pregnancy and the possibility of marriage.  Mr McCaffrey was not backward in telling Miss Shankelton his views:

“For your information, it is directed that any matters affecting the future welfare of wards of this Branch shall be referred in the first instance to this office for consideration by the child’s legal guardian.  This administrative direction affects all wards committed to the care and custody of the Retta Dixon Home.”

The letter was put to Mrs Moy in cross-examination and she agreed that his statement of responsibility as the legal guardian of the child coincided with her understanding of the responsibility of the Director of Welfare.  I interpret the Acting Director’s letter as a clear indication that he believed that the administration had a direct involvement in the control of the children even though they were residing in a Home.

375               As an example of the division of labour between a patrol officer and welfare officer, Mr Long explained that normally a welfare officer would have the responsibility of investigating whether a child should be a ward.  However, the division was blurred; he acknowledged in cross-examination that the duty statement for patrol officers in 1958 included the responsibility for exercising general supervision over all matters affecting the welfare of wards, including their removal from a reserve or a district.  That same duty statement included a direction that it was the duty of patrol officers “to observe and report” on part coloured children in native camps”.

376               In 1958, the last year of his service, Mr Colin MacLeod was stationed at Alice Springs as a patrol officer.  He was working under Mr Billy McCoy, the District Welfare Officer, a person for whom he had little regard.  Sister Eileen and Mrs Ballagh were also there at that time, working as welfare officers.  Mr MacLeod said that their duties were entirely separate to his.  They were concerned with members of the general community, including part Aboriginals, whereas the work of a patrol officer was devoted primarily to full blood Aboriginals.  He said that there would have been times when his work took him to St Mary’s but the Bungalow was the place that he most often visited; he could not recall any particular occasion when he visited St Mary’s.  According to Mr Penhall’s evidence, welfare officers were appointed to and worked in the General Welfare Section.  He said that it was not normal practice for welfare officers to accompany patrol officers on patrols.  However, as he explained, they might be sent out to a specific location “where there may be families that needed welfare assistance”.  As for patrol officers he said:

“Well, they worked with the welfare officers, particularly on areas where Aborigines were involved, but not where Europeans or persons of Aboriginal descent were involved.”

377               In 1960 Mr Penhall was again promoted; he transferred to Alice Springs to take up the newly created position of Assistant Director Southern Division, a position which he held until 1967 when he was appointed Assistant Director, Northern Division, stationed in Darwin.  On being appointed Assistant Director Southern Division in 1960, Mr Penhall overtook his previous superior officer, Mr McCoy, who unsuccessfully appealed against Mr Penhall’s appointment.  Mr McCoy thereafter remained the District Welfare Officer in Alice Springs.  At that point in time Mrs Ballagh and Sister Eileen were still stationed in Alice Springs as welfare officers.

378               In 1970, Mr Penhall studied in Canada, the United States and Mexico on a Churchill Scholarship.  He studied in the area of the effects of alcohol on indigenous people and upon completion of his studies he returned to the Welfare Branch as a Special Projects Officer.  Thereafter, for a period of six years, until the Northern Territory obtained self-government in 1978, Mr Penhall worked as the Executive Officer for the Transport Planning Branch in the Northern Territory Administration.  With self-administration, he took up the position of Executive Officer with the Aboriginal Liaison Unit in the Chief Minister’s Department and Adviser to the Chief Minister.  He remained in that position until he retired in 1983.  It is apparent from his experience, and from the successive promotions that he achieved throughout his working career, that Mr Penhall has a great depth of knowledge of Aboriginal affairs.  I respect that knowledge.  Additionally, I accept him as an honest witness, but as one who, because of the length of time, was quite often unsure of events and of his participation in events.  Nevertheless, he gave his evidence to the best of his ability.  Where Mr Penhall was able to recall a particular event, I accept what he said in respect of that event.  However, in one area, his evidence about the extended family of a part Aboriginal child was at variance with that of other witnesses.  I prefer the evidence of the other witnesses but I am satisfied that Mr Penhall still gave his evidence in accordance with his memory of the events.  He had said, in speaking of the personal circumstances of part Aboriginal children, that it was his experience that the only person who was interested in the child was the child’s mother.  If a grandmother, for example was present and showed interest in the child, he would then take that into account but it was his evidence that the part Aboriginal child “didn’t really have an extended family at that particular moment in time”.  Although the evidence was not unanimous, there was enough evidence of examples to the contrary, to hold that it would be an error to say that part Aboriginal children could never be part of the extended Aboriginal family.

379               During the course of his cross-examination, a series of factors were put to Mr Penhall as matters that he would consider when making an assessment of the personal circumstances of a part Aboriginal child.  The factors to which he agreed, as matters that he would weigh up in deciding whether or not to recommend that a child should be brought in, included the child’s age and state of health, the food and care that were available for the child, and whether the child was accepted by his or her family and by other children.  If the child was healthy and was attending a school, Mr Penhall said that the Welfare Branch would “have nothing to do with it”.  It was put to Mr Penhall in cross-examination that in 1949, at the time when he compiled a lengthy report on his inspections of various stations, “the consent or otherwise of the mother was irrelevant as to whether that child would have been brought in or not”.  Mr Penhall would not accept that proposition.  He said “No, I’m sorry.  I do not agree”.

380               He acknowledged that removals had taken place in the 1940s and he acknowledged that the taking of the children from their mothers was a patrol officer’s most hated task because of the emotions that were involved.  However, Mr Penhall insisted that in the 1940s the patrol officers talked to the mothers and convinced them that it was in the best interests of the children for their health and education to go with the patrol officers; “they were certainly not forcibly removed”.

381               Apart from his involvement in moving the children from Phillip Creek, Mr Penhall said that, in his time as a patrol officer, there was only one other occasion in which he was involved in the movement of children.  That event occurred in 1949.  He said that, following the completion of his Barkly Tablelands patrol, he received a telegram at the Rankin River Police Station from Mr McCoy to proceed to the Anthony Lagoon Police Station to pick up four children and take them to the Retta Dixon Home at Darwin.  He did not know then why the children were to be taken in and he did not recall when giving his evidence very much detail about the incident.  The most he could say was “I’d say they were without their parents, I don’t know”.  He was not aware of any resistance and he had no recollection of any complaint.  Mr Penhall was shown a report that had been compiled by him on 24 November 1949 in relation to a child whom he had brought in for medical treatment.  In the report Mr Penhall recorded that the child “had been abandoned by the natives and is suffering from malnutrition”; he recommended that the child should be kept at St Mary’s.  Mr Penhall said that he had no memory of this incident but he did not doubt the accuracy of the report.  Two comments may be made about this report.  First, it contradicts his recollections that he never brought in a part Aboriginal child; secondly, however, it contradicts any general proposition that all part Aboriginal children were accepted into the Aboriginal community.

382               Mr Penhall said that he did not, as a patrol officer, have any specific instructions with respect to part Aboriginal children.  He said of them, that they were to be found, mainly, on cattle stations; he had no recollection of finding them with nomadic tribes.  Mr Penhall was asked a series of questions in evidence in chief on the subject of “policy”.  He said that when he returned to the Native Affairs Branch in 1946:

“… the policy was purely and simply an endeavour to assist Aboriginals.”

Mr Penhall did, however, emphasise that it was a policy that no child could be removed from his or her family without the consent of the Director of Native Affairs.  He said that this policy had always existed but that, prior to the 1953 amendments, there had been some measure of latitude; however, so he said, the amendments meant that there had to be strict adherence to policy guidelines as laid down by the Government.  That was also about the time when Sir Paul Hasluck became very active.  As Mr Penhall perceived it, Sir Paul was instrumental in introducing a policy of assimilation.  When asked to state his understanding of the assimilation policy, Mr Penhall said:

“From my point of view we were endeavouring to give these people the necessary skills to become economically viable, independent individuals within the Australian community.”

383               The Leydin memorandum was shown to Mr Penhall whilst he was being cross-examined.  Mr Penhall said that he had heard about the incident at Wave Hill when two children were taken into Darwin by aeroplane.  It was put to him that there would have been no need for Mr Leydin to refer to a “violation” of “human rights” if, as Mr Penhall said, children were only brought in with their mother’s consent.  He was forced to concede that the language of the memorandum did not fit in with his claims that the removal of part Aboriginal children was as a consequence of a consensual arrangement with the child’s mother.  Mr Penhall agreed that there was a policy of removal of part Aboriginal children in the 1940s but it was his evidence that “the practical application of that policy” was different to “what was actually in writing”.  In asserting this, he, of course, stood by his evidence that he was never personally involved in any removal of any child.  He continued to maintain throughout his cross-examination that he had no personal knowledge of any forced removal but he was eventually forced to concede that if there had been such removals of the type referred to by Mr Evans at Wave Hill it would have been “outrageous”.  Mr Penhall attempted to make clear what I accept to be his present memory of the events of fifty years ago.  He was endeavouring to avoid the confrontational issue of what might have been Government policy, by answering how he, as a patrol officer, carried out his duties.  Although he did not use these words, the effect of his evidence was that even if Government policy allowed for part Aboriginal children to be brought in without a mother’s consent, he would never have done that.  His answer was as follows:

“You’re making it extremely difficult to get the concept over that patrol officers did not go out of their way to remove children.  They went to assist children, to try and assist mothers, to try and give children a chance in life.  While the policy was - and as far as I’m concerned it was never laid down in legislation, the policy was removal of part-Aboriginal children, yes, I agree with that.  The application of that policy is what I am querying at the present time.”

384               When asked about the education of part Aboriginal children, Mr Penhall said that they, as distinct from full blood children were educated in the same manner as white children.  Mr Penhall said that although he recommended from time to time that some part Aboriginal children be brought in for education, he had no recollection of ever being involved in the forced separation of a child from his or her family.  Because of the importance of the subject, I set out his evidence:

“How was it that children, half-caste children on the stations to whom you’ve referred attended those schools?  How was that achieved? --- Well, there were – I suppose you’d call them boarding colleges.  There was St Mary’s in Alice Springs and also Griffiths House, [a Hostel for white children in Alice Springs] which was another one, where bush children were brought in stayed and were accommodated while they attended school.

Yes.  Who arranged that? --- Well, most of it was done by the parents of the children themselves.  It was only in isolated instances where perhaps we were involved in suggesting that a child be brought in for educational purposes.

And what were those isolated instances? --- Again, mainly because in some areas that the child was being neglected and it would be suggested to the mother that it would be a good idea for the child to come in to receive education and live in a place with other children.  To us the welfare of the child was paramount at all times.

You said it would be suggested to the mother.  Who would make such a suggestion? --- Probably us.  I mean, if she was in trouble we’d certainly make the suggestion to her.

Did this apply to every half-caste child who you saw? --- No.  A lot of them were living with their families and they were never ever removed.

Now, was there ever an occasion in which you participated in which a child was removed against the will of its mother or father? --- I can’t recall it.”

385               During his time as a patrol officer in the late 1940s and the early 1950s Mr Penhall’s work brought him into regular contact with Aboriginal and part Aboriginal people.  He was, I find, in a position to make observations about all aspects of their lifestyle, their living conditions and their method of living as well as their working conditions.  When asked in cross-examination to describe living conditions in native camps, Mr Penhall said:

“Well, basically extremely primitive.  Most of them were living in very poor conditions, in windbreaks, and just with some branches put across the prevailing wind.  They’d be sleeping in groups with small fires in between them to keep them warm at night.  They’d have probably a lot of areas, because there was no rubbish collection, with empty tins.  There were bones of dead animals or animals that they’d had, lying around the place everywhere.  There were flies everywhere.  The old women would not go very far to urinate and the whole thing, to me, was very – they were living in squalor.”

Yet despite these dreadful conditions, Mr Penhall was satisfied with their general state of health.  He attributed this to western influences.  He gave as an example “the girls who’d worked in the station homestead with the wife, they were usually all showered and changed into clean dresses”.

386               At this stage in the proceedings, Mr Rush QC for the applicants, objected to the line of evidence that dealt with living conditions in native camps.  He pointed out that his clients had called witnesses, some of whom had lived either at Banka Banka Station or at the Phillip Creek Settlement and others who had lived at Utopia Station.  He said, correctly, that none of these witnesses had been cross-examined about the living conditions in those places.  He submitted that it offended the rule in Browne v Dunn (1894) 6 R 67 to permit Mr Penhall to give evidence on this subject.  When pressed on the subject, he went so far as to say that “we would be refuting the idea of flies, or dead animals and bones and squalor”.  The position that was taken by Mr Meagher QC for the Commonwealth, and one with which, on reflection, I agreed was that it was not a matter of the living conditions at one or two particular locations that was of importance.  Rather it was a perception of the living conditions of Aboriginal and part Aboriginal people on the stations at large that Mr Penhall’s evidence was addressing.  If, as Mr Meagher said, there was to be an attack on the policies of the Commonwealth, then it was relevant and important to know the views of patrol officers (such as Mr Penhall) who had first hand knowledge of those conditions.  In fact, at a later stage of his evidence, Mr Penhall said that the native camp at Utopia was in good condition.  Mr Penhall said that Alec McLeod was “a very strong character” who was very strict, particularly in matters relating to the Aboriginal people’s hygiene.  Mr Penhall added that Mrs McLeod also insisted on adherence to hygiene.  Mr Penhall was of the opinion that Aboriginal people at Utopia “were quite well looked after”.  In my opinion, the evidence of Mr Penhall on the general subject of camp conditions was admissible and relevant.

387               Exhibit R177 contained a variety of reports, including a report that was compiled by Mr Penhall following one of his periodic inspections of cattle stations.  One such report of Mr Penhall, which was undated, related to a visit that he made to Angas Downs Station.  That was the station where Peter Gunner worked when he left St Mary’s.  It dealt with the conditions and the circumstances of the Aboriginal and part Aboriginal people who were living on the Station.  Under the heading of “Natives” it was recorded that there were “33 Pitjinjara” (sic) on the Station, but no “Half-castes”.  Their accommodation was described as “[B]ush wurlies and wind breaks, no latrine or laundry facilities”.

388               During the same patrol, Mr Penhall visited numerous other stations and, in respect of each of them, he included cryptic comments about a variety of matters, such as the living conditions of the Aboriginal people and the particulars of half-castes.  Set out hereunder are some of his remarks that dealt with living conditions.  For the most part, they are a litany of deplorable conditions giving the gravest cause for concern about the well being of the people who had to survive in such circumstances.  For example, at Deep Well Station there were:

“Bush humpies – the natives were given a tent but this is now wrapped around the humpies.”

Nevertheless, Mr Penhall reported that the natives were happy; he reported that the “only matters” that required attention were “accommodation, latrine and laundry facilities”.  The use of wurlies and the lack of latrine and laundry facilities were recurring themes in his reports; they were mentioned in his reports on Erldunda, Idracowra, Kulgera and Lilla Creek Stations – to name but a few.  However, not all stations were so lacking; one exception to the general trend was Henbury Station.  As to that Station, Mr Penhall reported on accommodation as follows:

“Accommodation:  Practically all part aboriginal people live in wood and iron constructed huts, some having as many as two or three rooms with 6 foot verandahs on one side.  It is only a few of the very old natives who camp in, and still retain their bush wurlies.”

He also said that the health of the Aboriginals was good, the camp was clean and tidy and that there were latrines and a laundry with ample water.  Mr Penhall’s report on Henbury Station contained an interesting note under the heading “Half-caste”.  As a contemporaneous note, it serves the very useful purpose of exposing the attitudes and thinking of a patrol officer in the late 1940s and earlier 1950s.  I find that the note supports the oral evidence of Mr Penhall that he and others like him at the time, were motivated to act in the best interests of the part Aboriginal child.  The note, which is set out hereunder, is limited in its content to education but I accept Mr Penhall’s evidence that health was also a matter of concern to the patrol officers.  His report read as follows:

“Half-caste:  Out of the 31 coloured people on the Station only two are exempt, namely Gordon Abbott and Kenneth Swan.  These were granted as a result of war service.  The remainder have been born and brought up on Henbury and are quite satisfied with their conditions.  Some of the children have received education at Hermannsburg, but have not progressed very far.  The overcrowding of Hostels in the Alice Springs Area, prohibits the children from receiving schooling, so I would suggest that next year if the position has eased, some of the younger, near white kiddies could be brought in.  Mr. Pearce is giving all the youths a good training in stockwork, and is keen on educating the others.”

389               The same concerned approach (although strongly flavoured with racial overtones) is apparent from some of his other reports.  He discussed the personal circumstances of Alice M-- and her young daughter, Helen, whom he found at Mt Quinn Station.  He wrote:

“Half-caste:  Alice M-- aged 20 daughter of Billy M-- three-quarter black and full-blood living in camp.  Helen M-- aged 1 year daughter of Alice M-- and full-blood.  I don’t recommend any action regarding these two.  They are not over endowed with white blood, and no good purpose could be served by removing them.”

At New Crown Station there was another part Aboriginal girl of whom he wrote:

“Half-caste:  The girl Emmie is about 15 or 16 years of age and is reticent regarding her history.  She has apparently been absorbed into the tribe and can speak very little English.  She is quite happy to remain in the camp and I don’t think it would help her in any way to remove her from her present environment.”

390               Another of Mr Penhall’s reports to which reference need be made is that concerning Renners Rock Station and its owner, Mr RH Buck.  In his report, the following passage appears:

“Half-caste:  Two girls aged 7 and 14 years.  Mr. Buck has assumed responsibility for these girls and in looking after them.  This is contrary to the Ordinance but as Mr. Buck is now 75 years old there would be no danger of illicit relationship.  The girls were very well clothed and in excellent health, they are daughters of Sonny B, three-quarter white (deceased) and full-blood TUNGO.  One is too old for educating the other could possibly be brought in next year for schooling.”

Mr Penhall said, in answer to questions put to him during the course of his cross-examination, that he was “rapped over the knuckles” by his Director in Darwin because he had no right to assume that Mr Buck would be able to look after the children.  The questions and answers that followed were, in my opinion, significant for they showed that Mr Penhall was prepared to agree with the cross-examiner that there was in existence a general policy for the removal of part Aboriginal children for the purposes of their education.  The passage in cross-examination was as follows:

“Well, that was a fairly reasonable rap over the knuckles if you have a look at your next paragraph, isn’t it? --- Yeah.

That you were of the view that the 14-year-old girl should stay and that the 7-year-old should be looked at the following year? --- Yeah.

And I suggest that would be because the 7-year-old fitted into the general policy of removal? --- Yes.

Her age was right in relation to education? --- Yes.”

391               The last of Mr Penhall’s reports to which reference should be made is that dealing with a young child at Tempe Downs Station.  The relevant extract in the report is:

“Half-caste:  Jack O’D-- from Queensland been on Tempe Downs for 7 years, married to full-blood.  Not exempt in Northern Territory and also one girl about 2 years old.  Father unknown.  Would suggest that this kiddie be brought in for education purposes when old enough.  Mr. O’Brien will co-operate in this respect.”

Once again the emphasis on education can be seen, although in this report, as in some of the others to which reference has been made, nothing is said about counselling the child’s mother or obtaining her consent.  There were several other references in his reports to various part Aboriginal children but there is little point in chronicling them because Mr Penhall cannot now recall whether or not his recommendations were accepted.

392               There are no documents from the files of the Native Affairs Branch or the Retta Dixon Home dealing specifically with the removal of Lorna Nelson from Philip Creek or her admission to the Home.  However, six years after her admission, on 18 August 1953, a committal order (“the committal order”) was made by Mr McCaffrey, the Acting Director of Native Affairs, acting under ss 6 and 16 of the Aboriginals Ordinance.  Under it, he committed Lorna “to the custody of the Retta Dixon Home, Darwin until 8 August 1956”, her eighteenth birthday.  No contemporaneous documents were tendered in evidence that would show on what basis Lorna was admitted to the Retta Dixon Home or on what basis she lived there prior to the making of the committal order; nor have any such documents been found that show whether the Director of Native Affairs asserted or exercised any coercive power in relation to Lorna’s admission to the Retta Dixon Home.

393               Mr Milliken was not able to recall that he had any involvement with Lorna Nelson whilst she was at the Retta Dixon Home.  That is understandable as he did not take up his duties in Darwin until late in 1955 and she left Retta Dixon about a year or so later.  During his evidence in chief, Mr Milliken’s attention was drawn to the committal order.  Mr Milliken was asked whether he could explain why, if Lorna first went to the Retta Dixon Home in 1947, it was not until six years later that a committal order was signed.  His explanation, which I accept was to this effect:  in the first place, the Director had, as Mr Milliken described it “complete authority to transfer”.  (The provisions of s 16 of the Aboriginals Ordinance justify that statement).  In the second place, a material change was about to occur in 1953:  with the intended amendments to the legislation, Lorna would no longer be entitled to remain on the Bagot Reserve (on which the Retta Dixon Home was situated).  This problem had been addressed by Mr McCaffrey in his memorandum to the Administrator dated 17 August 1953 in which he wrote:

“All half-caste children under 18 years of age at present resident in any Reserve or Institution will be committed prior to the commencement of the Ordinance.”

Mrs Cubillo said that she had no recollection of her biological mother, Maudie.  Throughout her evidence in chief, the case for Mrs Cubillo was that Maudie died when she was very young – so long ago that Mrs Cubillo had no memory of her.  Mrs Cubillo referred to Maisie Nampijimpa, her maternal aunt, as her mother.  She grew up believing that Maisie was her mother.  She believed that Maisie, was “highly respected and loved amongst my people”.  She said that she had happy memories of her childhood and her family; she loved them and, in turn, felt their love.  Mrs Cubillo said that she was told that her father was a white man, Horace Nelson, and that he was a soldier.  But, as she said, she did not then know what a soldier was; she never knew her father.

394               She claimed in her evidence in chief that she had memories of her childhood at Banka Banka.  She told of a house with a red roof, a lemon tree in the garden and the rails around the cattle yards where she used to sit and watch the men working the cattle.  She claimed that she could remember digging for yams and collecting bush berries with her grandmother, who also showed her how to dig in a soak for water.

395               Maisie was not accepted, as a matter of law, by the Commonwealth as being Lorna’s adoptive mother.  Whilst that may be true as a matter of law, I do not think that it is necessary to investigate that particular issue in depth.  It is sufficient to accept, as I do, that, as a matter of fact, Lorna’s mother was dead, her father had deserted her and Maisie, her maternal aunt, had a very close relationship with her - sufficient for Lorna to grow up thinking that Maisie was her mother.  It is an agreed fact that Maisie died in the Tennant Creek Hospital on 7 January 1979, but there is no record of Maudie’s death.  Mrs Cubillo also remembered her grandmother, Alice, and her many maternal aunts and uncles.  She said that all the members of her family worked at Banka Banka – the men with the cattle and the women in the garden.  Her grandmother cared for her while Maisie worked in the garden.  It was her grandmother who told her that her tribal name was Napanangka.

396               The Commonwealth presented extensive submissions aimed at refuting Mrs Cubillo’s claim that she was born at Banka Banka Station.  Her birth certificate stated that she was born in Tennant Creek on 8 August 1938 but it is not possible to rely on the information in such a certificate.  In the case of Mrs Cubillo, the birth certificate records that the informant was Mr McCaffrey, the Acting Director of Native Affairs, and that the birth was registered in Darwin on 15 March 1954, at which point of time Lorna would have been about fifteen years of age if, indeed, she was born on 8 August 1938.  No other evidence, apart from that of Mrs Cubillo and Kathleen Napanangka, her tribal sister,was available to establish her place of birth.  Her biological and adoptive mothers and fathers and her grandmother Alice are dead; the station owners at Banka Banka Station, Mr Ted and Mrs Mary Ward are dead.  The patrol officers who were operating in that area at the time, Mr Gordon Sweeney and Mr Bill Harney are also dead.  No further documentary material has been forthcoming that would shed any light on the subject.  Ms Hollingworth for the Commonwealth added that the Court could not even be satisfied that Lorna was ever taken or moved from Banka Banka to the depot at Seven Mile Creek.  I would be reluctant to rely on the memory of Mrs Cubillo alone; after all, she was only deposing to what other unnamed persons had told her about her place of birth.  However, there was the evidence of Kathleen Napanangka.  Kathleen was a daughter of Maisie and, therefore Lorna’s first cousin, although in accordance with Aboriginal custom, they referred to each other as sisters.  In her evidence in chief, Kathleen had said that Lorna had been born at Banka Banka Station and had lived there as a young child.  On the other hand, during the course of her cross-examination, it became apparent that there were doubts about the accuracy of that statement.  For example, Kathleen said that she spent the first fifteen years of her life at the Telegraph Station with her mother Maisie where Maisie was working as the cook.  Kathleen said that, when she left the Telegraph Station, that is, Seven Mile Creek in 1940 to get married and to go to Banka Banka, Maisie stayed behind at the Telegraph Station with Lorna.  That statement suggested that Maudie might already have died; it also appeared to contradict Lorna’s memory that Maisie was working in the garden at Banka Banka; furthermore, Kathleen did not explain how Maisie came from the Telegraph Station to Banka Banka.  The evidence is tenuous but I think that Kathleen’s evidence is sufficient for me to find, as I do, that Lorna Napanangka Nelson was born on Banka Banka Station.

397               Save that the location of Mrs Cubillo’s place of birth may assume importance should she wish to participate in a land claim as a traditional owner, whether she was or was not taken from Banka Banka Station is not of critical importance to a resolution of the issues in this case.  Mr Rush QC made it clear, during the course of his opening, that the further amended statement of claim alleged that Mrs Cubillo’s causes of action arose at the time of her removal from the Phillip Creek Settlement.  The Commonwealth accepted that position and presented its submissions upon the premise that there was no allegation that the Commonwealth was, in any way, liable for any removal of Mrs Cubillo from Banka Banka Station, or for any detention of her at Seven Mile Creek or at Six Mile Creek or at the Phillip Creek Native Settlement.

398               Mrs Cubillo said that her biological mother, Maudie, had two other children:  Jack, the eldest and Margaret who was the youngest.  She added that Maudie had married and that her husband’s name was Mick, a Warumungu tribal elder.  It was her recollection that Mick worked “for some government people”, that she saw him from time to time “but most of the time he was away working with somebody else”.  Mrs Cubillo said that Mick treated her like a daughter and she regarded him as her father.  There were several areas of confusion in Mrs Cubillo’s evidence and this was one of them.  She stated that she did not know that Maudie was her mother until Maisie’s daughter, Polly Kelly, told her at about the time that she, Lorna, left school.  By that time, she would have been about eighteen and would have left Banka Banka many years earlier.  Nevertheless, she identified Mick as Maudie’s husband (not Maisie’s husband) and as the man who treated her as his daughter.  Why did she regard him as a father figure when she did not know that he had been married to her biological mother?  It could not have been a mistake or misunderstanding on Mrs Cubillo’s part.  Her counsel asked her:

“Your natural mother, Maude or Maudie, was she married?”

Mrs Cubillo replied:

“She was married to Mick, whom I called Dad.”

399               Mrs Cubillo’s evidence did not support her counsel’s submissions that Maisie’s husband was Mick nor did the evidence of Ms Vaarzon-Morel who agreed in cross-examination to the proposition that it was Maudie who had married Mick.  But Ms Vaarzon-Morel also said, in answer to a proposition from cross-examining counsel, that Mick had adopted Lorna.

400               Mrs Cubillo said that one day she was in a creek bed at Banka Banka Station with Alice, her grandmother, who was cooking yams.  She said that she could remember her grandmother taking her to the creek “where she painted me with soot from a billy-can and ashes from the fire”.  The evidence in the trial has satisfied me that this was a common practice that was adopted by Aboriginal mothers of part Aboriginal children:  particularly those with fairer skin.  It was an attempt to disguise the children and so to protect them from being taken away by the authorities.  Two men on horseback rode up.  Her grandmother told her to be quiet and to sit behind her, out of sight of the two men.  However, curiosity got the better of the little girl; she peered around her grandmother to see what was happening.  She said that one of the two men, whom she named as Barney McGinness, a part Aboriginal, saw her, took her by the hand, led her to the water in the creek and washed the bottom part of her leg; she said that her leg had been covered in soot and ashes.  Mrs Cubillo then claimed that Mr McGinness “told the other person that I was a half-caste”.  That other person was said to be Mr Bill Harney, a patrol officer.  Mrs Cubillo continued with her evidence, saying that Mr McGinness lifted her up to Mr Harney, who had remained mounted, and that the two men rode off with her.  She said that when they came to a car at the Station gate, they all transferred to it.  They then travelled by car to the Telegraph Station (ie the depot at Seven Mile Creek) where there were several people including her Aunts Minnie and Daisie and other members of her family.

401               This particular passage of Mrs Cubillo’s evidence was the subject of objection by counsel for the Commonwealth on the grounds of relevance and hearsay.  As to relevance, it was submitted that in her pleading, Mrs Cubillo had alleged that she had been unlawfully removed from Phillip Creek and that what happened to her some years earlier was irrelevant.  As to hearsay, it was submitted that Mrs Cubillo did not know the two men – she had never seen them before and she had only learnt their names because of what her grandmother had subsequently told her.  I ruled against both these objections during the course of the trial.  I had formed the opinion that Mrs Cubillo’s case against the Commonwealth was based on events that had happened to her as a young girl and as a teenager.  I felt that it was the story of her life as a young part Aboriginal girl that was the foundation of her case.  In the interests of completeness there was, in my opinion, a strong case to receive into evidence, a narration of all material events that occurred during her time at Banka Banka and subsequently.  As to the question of the identity of the two men, it is true that Mrs Cubillo’s evidence would be hearsay, based as it was on what her grandmother told her, but so far as I am aware, many identities are the subject of hearsay information.

402               In any event, the claimed prejudice to the Commonwealth in allowing Mrs Cubillo to name the two men was illusory.  Their taking of the small girl was no part of the applicant’s case; there was no cause of action founded on that taking.  If anything, the admission of the evidence rebounded marginally in the Commonwealth’s favour for it enabled it to use the deaths of Mr Harney and Mr McGinness as further examples of the prejudice that the Commonwealth might suffer if Mrs Cubillo is granted an extension of time within which to prosecute her case.  It has also been of some marginal assistance to the Commonwealth for, as I shall endeavour to explain, Mrs Cubillo’s evidence on this subject cannot be accepted as reliable.  Such an event, as described by her, would have been a very traumatic event for a small child.  To be taken away from her grandmother in such circumstances would have been very distressing.  Yet there were aspects of her story that caused me concern.  She had earlier said in evidence that she had little knowledge of English as a small child.  She said that she spoke the Warumungu and Warlpiri languages but she “didn’t have much knowledge of any English”.  Nevertheless, she claimed that she was able to remember that Mr McGinness said to Mr Harney that she was a “half-caste”.  I find it difficult to accept that she would have been able to understand and remember such a statement if, as a small child, she was not reasonably fluent in English.  Mrs Cubillo was asked in cross-examination whether there was a word in either the Warumungu or the Warlpiri languages for “half-caste”; she said she did not know.  It was Mrs Cubillo’s evidence that she only learnt that there was a difference between half-caste and full blood people when she went to Phillip Creek.  Until then, they “all treated each other the same”.  Yet despite this passage in her evidence she insisted that Mr McGinness used the word “half-caste”:

“I did hear that word half-caste.  Ms Hollingworth, that is quite clear, I heard him say half-caste.

You spoke no English, Mrs Cubillo, whatsoever, you accept that? --- I spoke no English, but he did make reference to …

You were 3 or 4 years old at the time of this incident? --- I was old enough to know and hear and see during that time.

And the only word you can remember from this entire incident, two words rather, is that he said half-caste? --- That’s right.

Is that your evidence? --- That is right.

Even though as far as you know nobody had ever – the concept of half-caste was unknown to you until some years later after two further moves when you were at Phillip Creek? --- But I will remember those words he said to my grandmother.

Well, I put it to you that you are reconstructing when you say those words? - I am not reconstructing, I am giving you the version and the truth of what happened on that day.”

However, Mrs Cubillo’s insistence was not supported by her examining psychiatrist, Dr Gibney.  He was asked in cross-examination:

“What would you say, Doctor, from your experience, of the likelihood of a child of three or four years old recalling what someone said in a language different to that which they held?”

Doctor Gibney replied:

“I think it would be unlikely.”

403               Mrs Cubillo said that she knew the names of the two men who had taken her from Banka Banka Station because her grandmother had told her.  As her grandmother died in the 1940s, sometime before the children were taken to the Retta Dixon Home, this meant, as Mrs Cubillo agreed, that she had known the names of these two men for the last fifty years or more.  In fact she volunteered:

“Everybody in the community knew who these people were.”

But, in her further and better particulars of her statement of claim that were filed in February 1998, Mrs Cubillo merely pleaded that she was taken by Mr Barney McGinness “and another man”.  And elsewhere, one of her answers referred to an “unknown white man” as the person “who assisted Mr McGinness” in taking her from Banka Banka.  On the other hand, in the same set of particulars, in answer to a request to identify “every person under whose care and control [she] was kept” Mrs Cubillo named “Mr W Harney” as one of the persons at the Six Mile Depot.  Mrs Cubillo had a recollection in February 1998 of Mr Harney as a person at the Six Mile Depot but not, apparently, as one of the two men who took her from her grandmother. It was put to Mrs Cubillo that she had only recently learnt that Mr Harney was the second man, but she was adamant:

“Ms Hollingworth, I knew it was Mr Harney because Mr Harney was around Phillip Creek and Seven Mile and Six Mile.”

404               On 7 April 1999, Mrs Cubillo filed an amended set of further and better particulars.  This document perpetuated her earlier references to Mr Harney.  He was named as a patrol officer at the Six Mile Depot, but it was merely “another man” who, with Barney McGinness, had removed her from Banka Banka Station.  However, later, in a document entitled “Status of Amended Further and Better Particulars of Amended Statement of Claim” that was filed on 29 April 1999 there was an entry:

“Eventually the applicant was taken by Mr Barney McGinness and another man who she believes was Mr Bill Harney.”

The words “who she believes was Mr Bill Harney” were underlined, indicating that they were in the nature of an amendment or an addition.

405               I cannot accept that Mrs Cubillo has known for the last fifty years or more that Mr Bill Harney was one of the two men who removed her from Banka Banka.  Either she has only recently acquired this knowledge or, as is more likely the case, she may have once known his name but forgot it until somehow she was reminded of it as late as April 1999.  Either way, it was not correct for her to insist – as she did – that she had, at all times, known and remembered that it was Mr Harney who was one of the men who had taken her from her grandmother at Banka Banka Station.  I do not criticise Mrs Cubillo for forgetting Mr Harney or his name; she would have been a small child if she was taken away as she said, and it happened over fifty years ago.  There were other mistakes in some of the factual assertions in her pleadings.  For example neither Mr McGinness nor Mr Steven O’Donohue were involved in her removal from Phillip Creek as initially alleged.  I do not consider that there is anything sinister in those errors – in fact they were later corrected in a supplementary document.  Rather, I see them as tangible examples of the difficulties that all witnesses in this trial have faced in trying to remember the detail of events that occurred so long ago.  My criticism is reserved for her unnecessarily and incorrectly insisting that she had always known that it was Mr Harney.  Perhaps the events, as she described them, did occur and perhaps her grandmother later told her of them; perhaps, over the years, what Mrs Cubillo remembers has become mixed with what she had been told.  It is not possible to come to any conclusion with the degree of satisfaction that should accompany an important finding of fact.  I am satisfied that Mrs Cubillo has engaged in an exercise of reconstruction.  Perhaps she did it subconsciously.  However, there are too many contradictions in her evidence to accept her description as accurate.  Perhaps patrol officers took Mrs Cubillo, as a small child, from the care of her grandmother at Banka Banka Station and removed her to the Seven Mile Depot, but I do not think that it is possible to make any specific findings on the subject.

406               If she left Banka Banka with Messrs Harney and McGinness, I cannot say why that should have happened nor do I know what might have been said to her grandmother.  Indeed whether her grandmother approved of her going is a matter upon which there is no evidence.  Perhaps she was taken against the wishes of her grandmother – that cannot be established because her grandmother is dead.  Perhaps there was some other explanation – but that cannot be established because Messrs Harney and McGinness are dead and neither side has been able to adduce any documentary material that is relevant to the event.  It is significant that, having fought to have the evidence admitted, the final submissions that were made on behalf of Mrs Cubillo were silent about her removal from Banka Banka.

407               Exhibit A74:A7 is an extract from “Our Aim”, the newsletter that was published by the Aborigines Inland Mission.  It was dated 18 January 1943.  It referred to a letter that had been received by the Mission from Mrs Arnold Long dated 22 December 1942.  The article read in part:

“In a recent letter from Tennant Creek, Mrs Arnold Long tells of the removal of the Natives to a place known at present as the Six-mile.  Dependents of those working for the military will be rationed by them.  Mr. and Mrs. Long have now moved the bulk of their things to this new site.  Two of the men have built them a good bough shed, and four women have carried the material for the thatched roof and bushes for the walls, while several of the boys helped in other ways.”

408               This would suggest that the move to Six Mile Creek would have taken place in late 1942 at which time Lorna would have only been four years of age.  It also means that Lorna would have spent about two years and eight months from (say) January 1943 until September 1945 at Six Mile Creek.  It is not known, however, when she left Banka Banka or how long she stayed at Seven Mile Creek before the ration depot was moved to the Six Mile.  The letter from Mrs Long was also of interest because it showed the primitive conditions under which the missionaries were living.  It would be safe to assume that the conditions under which the Aboriginal people were living would have been no better.

409               Mrs Cubillo said that she remembered that Mr Long, a European, was at the depot at Seven Mile Creek; she also remembered that her grandmother arrived a few days after her and stayed with her at Seven Mile Creek and, later, at Six Mile Creek.  She said that Maisie visited her from time to time but that Maisie did not stay as, according to Mrs Cubillo, she continued to work at Banka Banka.  As has already been mentioned, her witness, Kathleen Napanangka contradicted that evidence; she claimed that at that time Maisie was working at the depot at Seven Mile Creek as a cook.  Mrs Cubillo gave evidence that at the depot at Six Mile Creek she was surrounded by her family.  On the other hand, it was the recollection of Jimmy Anderson, who gave evidence on behalf of Mrs Cubillo, that the half-caste children (including himself and Mrs Cubillo) lived separately from their families in a dormitory at the depot.  Annie Napurrula, another witness for Mrs Cubillo, had a similar recollection and said that the bigger children went to school at Six Mile.  It could be, however, that the separate sleeping arrangements applied only to the school going children whereas the younger children (and Lorna would have been one of those) lived with their families.  Nothing of importance turns on this particular point because Mrs Cubillo has not made any claim against the Commonwealth that its officers (or, indeed, the missionaries), detained her at either Six Mile Creek or Seven Mile Creek.  There was no evidence that would suggest that any form of restraint was imposed on the Aboriginal persons who were living at these depots.  Mrs Cubillo said in her evidence that the Aboriginal people were free to come and go from the ration depots as they wished.  Her evidence does, however, serve as an example of the difficulties that have confronted the Commonwealth in the preparation of its defence.

The Phillip Creek Native Settlement

410               It was an agreed fact that patrol officers Bill Harney and Gordon Sweeney from the Native Affairs Branch, together with Barney McGinness, were involved in the relocation of the ration depot from Six Mile Creek  to the Phillip Creek Settlement.  The Commonwealth acknowledged that it was the Northern Territory Administration that provided the land on which the Phillip Creek Native Settlement was located; it supplied all the building materials that were needed in the construction of the Settlement.  It also provided rations for the Aboriginal people living there.  The strength of the involvement of the Native Affairs Branch in the lives of the Aboriginal community at Phillip Creek can be gauged by the contents of an article that was written by Mr Ivor Thomas, the missionary in charge of the Settlement, and published in “Our Aim” on 17 September 1945.  After writing that the move to Phillip Creek occurred on 17 August, he proceeded to explain how and why the move was made.  Referring to the water shortage at Six Mile, he wrote:

“First we notified the Native Affairs Branch of our water shortage, then we ‘happened’ to meet one of the Acting Directors in town, and with him came to inspect the bore on this stock route reserve; then the Administrator of the Northern Territory ‘happened’ along and agreed to the move, and within a few days had the officers of the Native Affairs Branch handling the matter of the transferring of our two hundred people and ourselves these 26 miles, and now we are here where there are three big water-holes, and a bore on which to rely when these holes dry up.”

411               Patrol officer Gordon Sweeney submitted a report dated 18 September 1945 relating to the move from the depot at Six Mile Creek to Phillip Creek and the establishment of a Settlement at Phillip Creek.  According to this report, the relocation of the ration depot involved both the Aborigines Inland Mission and personnel from the Native Affairs Branch.  The three personnel from Native Affairs were Messrs Bill Harney, Barney McGinness and Gordon Sweeney, all of whom are dead and the four missionaries from the mission were Messrs Ivor Thomas, Kenneth Colley, Jim Davy and Arnold Long.  All those men are dead.

412               In his report for 1945-1946, the Administrator described the arrangements at Phillip Creek, saying of the Aborigines Inland Mission that “it has provided staff who have controlled departmental settlements”.  In the publication of “Our Aim” for 17 November 1947, an unidentified author wrote that at Phillip Creek “the distribution of supplies to the people on behalf of the Government is still being carried on by our Missionaries as a voluntary service on our part”.  Writing in April 1948, Mr Fred Gubbins described the arrangements at Phillip Creek as follows:

“The settlement is superintended by Mr Ivor Thomas of the Aboriginal Inland Mission on behalf of the Department.  He receives no payment for his services but is supplied with basic food requirements in the way of flour, tea and sugar, etc. (these supplies are drawn from the bulk issues made to the depot).

The Aboriginal (sic) Inland Mission have always run the Tennant Creek Settlement on behalf of this Branch, firstly Mr Long at the six mile depot and now Mr Thomas at Phillips Creek.”

Shortly afterwards, the Administrator described the establishment and maintenance of the Phillip Creek Settlement by the Native Affairs Branch, and had the following to say about the staffing:

“The settlement is under the control of Mr Ivor Thomas of the Aborigines Inland Mission who acts in an honorary capacity.  He is assisted by a school teacher.  Recommendation has been made for the appointment of a permanent superintendent.  Mr Thomas has given excellent service and volunteered for the task when no other person was available.”

Mr Thomas’ late wife also lived with him at the Settlement.  In addition to this literature, it was an agreed fact that officers of the Native Affairs Branch inspected the Phillip Creek Settlement from time to time.  The mission that was conducted by the Aborigines Inland Mission at the Settlement was under the control of Mr and Mrs Thomas.  Mr Colley, a schoolteacher, who also lived there, conducted a school for the Aboriginal and part Aboriginal children and Lorna attended that school while she was at Phillip Creek.  There was evidence that the school existed until around about 1951 when both the Settlement and the school were taken over by the Government.  Once at Phillip Creek, Lorna and the other part Aboriginal children of school going age were placed in dormitories that had been erected on the site.  At Phillip Creek the families, including the younger children, lived on the outskirts of the Settlement in humpies or, as Mrs Cubillo described it, “outside the fence”.  However, the young Lorna was able to maintain daily contact with her grandmother until she died, not long after the move to Phillip Creek.  Mrs Cubillo said that Maisie continued to visit her from Banka Banka but that evidence was also in conflict with the evidence of Kathleen Napanangka who said that Maisie did not live at Banka Banka until after Lorna had gone off to school.  What is more, it was Kathleen’s evidence that Alice, her grandmother and Lorna’s grandmother, had died prior to Kathleen’s wedding in 1940.  If that is the case, it means that Mrs Cubillo was wrong when she said in her evidence that her grandmother cared for her at Phillip Creek.

413               There was, at the least, a deep financial involvement by the Native Affairs Branch in the operations of the Phillip Creek Settlement.  For example, there was the letter of 24 September 1946 from Mr VJ White to the Acting Director of the Native Affairs Branch.  At that time Mr White was a clerk in the Branch; he headed his letter:  “Beef for Phillip Creek Native Settlement” and proceeded to discuss the quantity of beef that should be purchased, the source of purchase and the price to be paid.  However, the Settlement was run and staffed by the missionaries from the Aborigines Inland Mission from 1945 until the early 1950s.  Throughout the time that Lorna Nelson Napanangka was at Phillip Creek, the Superintendent was the missionary, Mr Ivor Thomas.  There is evidence that various patrol officers visited or passed through the Settlement from time to time but that evidence does not point to them participating in the day to day management of the Settlement; the physical presence of Mr Thomas and his title of “Superintendent” leads to the inference that he was responsible for the day to day management of the Settlement.  Based in my earlier findings, there was the potential for the Native Affairs Branch to exert control over the management of the Settlement, but there was no evidence that it did so.

414               Mr Jimmy Anderson said in evidence that whilst he was living at Phillip Creek, his mother, his brothers and sisters, together with some aunties and uncles, were also living there.  He did not speak English at that time; he spoke Warumungu and Warlpiri.  He said that he, along with the other children, slept in a big dormitory but his relatives were, as he described it, “scattered around – around buildings, more or less out in the scrub”.  Mr Anderson said that whilst he was at Phillip Creek, even though he and the other children slept in the dormitory, he was able to join up with his family and his mother during the day.  He could also remember that there was a school at Phillip Creek; he could remember that the schoolteacher was a Mr Colley and he recognised him in a photograph; but he could not remember whether he (Mr Anderson) attended school at Phillip Creek or not.

415               Mrs Cubillo said, during the course of her evidence in chief, that Maisie would visit her by getting a ride on the meat truck that came from Banka Banka Station to the Phillip Creek Settlement.  When it was pointed out in cross-examination that the documentary evidence showed that Banka Banka only provided meat to Phillip Creek between May and September 1946, Mrs Cubillo said that Maisie had regularly walked from Banka Banka to see her.  It was agreed between the parties that the distance between Banka Banka and Phillip Creek is approximately forty miles, that is, about sixty-five kilometres.  Mrs Cubillo was cross-examined about the length of time it would have taken Maisie to walk from Banka Banka to Phillip Creek and then back to Banka Banka.  The cross-examiner commenced by putting the proposition that the distance was forty miles.  Mrs Cubillo replied that she did not know the distance between the two places.  There then followed a frustrating series of questions and answers designed to extract from Mrs Cubillo a concession that it would have taken a considerable period of time to walk that distance.  Mrs Cubillo was alert to the fact that it would not have been possible for Maisie to have made a regular habit of walking such extended distances.  She sought to avoid the issue with answers such as:

“My people walked all their lives and I walked with them.”

416               Kathleen Napanangka’s evidence on Maisie’s whereabouts was as follows:

“Maisie was your mother? --- Yes.

Was she at Banka Banka? --- Yes.

For how long was she at Banka Banka? --- She at Phillip Creek.  She was looking for a job at that time, then she came to Banka Banka.

Was that before she’d gone to Banka Banka that she was at Phillip Creek? --- Yes, that was before she came to Banka Banka.

So she went from Phillip Creek to Banka Banka? --- Yes.

And do you recall when that was; what year that was? --- After he’d been gone.  Lorna had to go off to school, you know?

Yes, Lorna had to go off to school? --- Yes, and my mother been walk away, sorry way.”

The expression “sorry way” repeated by Kathleen more than once, was, I find, indicative of the hurt and sorrow that Maisie suffered when Lorna was taken away.

417               The confusion about Maisie’s whereabouts was compounded by a possible contradiction in Kathleen’s evidence.  Kathleen said that Maisie had worked at the Old Telegraph Station as a cook and had continued on there as a cook after Kathleen went to Banka Banka to marry.  She was then asked when did she see Maisie at Banka Banka:

“Right.  Now, when you left Telegraph to go to Banka Banka did Maisie go with you …? --- No.

… or did she stay behind? --- Stopping at Telegraph Station.  She stayed behind at the Telegraph Station.

Did you see her at Banka Banka after you went to Banka Banka? --- Yes, afterwards.

How long afterwards? --- In the war time Lorna been gone to school.  After Lorna.”

418               There was no reference to Maisie working at Phillip Creek in that answer; rather, one could get the impression that Maisie went straight from the Old Telegraph Station to Banka Banka at a point of time after Lorna had been taken from Phillip Creek.  I am inclined to the view that the nature of the questions did not invite a reference to Phillip Creek and that that is the reason why Kathleen gave the answers that she did.  Even though she gave her evidence through an interpreter, it was difficult at times to comprehend her answers and there were times when there were doubts about her comprehension of some of the questions.  The difficulties that the Courts faced when taking the evidence of some Aboriginal people were addressed recently by Lee J in Ward v Western Australia (1998) 159 ALR 483 at 497 where his Honour said:

“Evidence was usually given in English, but most often it was in broken form, using words of the Miriuwung or Gajerrong languages for names of people, places, objects, animals and for description of cultural matters.  The language amalgam has been described as ‘Kimberley Kriol’ by linguists and anthropologists.  Appropriate spellings of Aboriginal words used in evidence were compiled in an agreed orthography for use in the transcript of proceedings.

The difficulties courts face in receiving and dealing with evidence of Aboriginal witnesses is well known, particularly when English is at best a second, or lesser, language and the grasp of it is limited.  A transcript cannot convey nuances of gesture, movement or expression that bear upon an understanding of the evidence received in such circumstances.  Similarly, a transcript which presents as a seamless continuum of questions and answers may suggest more comprehension of the process by a witness than the court observes.

It was apparent that for a number of witnesses the adversarial system of trial, and a limited ability to express themselves fluently in English, hindered articulation of their evidence.  On some occasions it appeared that restricting oral evidence to responses to questions put by counsel left part of the story untold and where the questions of counsel relied on unstated or latent assumptions the full import of the questions was not understood by some witnesses and the responses were not directed to issues raised indirectly.”

Those remarks were quoted with approval by Beaumont and von Doussa JJ in the Full Court when the matter went on appeal:  State of Western Australia v Ward (2000) 170 ALR 159.  Their Honours added at 216-7:

“His Honour went on to observe that it was apparent to him that for a number of witnesses the adversarial system of trial, and their limited ability to express themselves fluently in English, hindered articulation of their evidence.  It is apparent from reading the transcript that on many occasions an Aboriginal witness, when answering questions, sought and obtained assistance from other Aboriginal people present at the time, and often the answers recorded indicate that the witness’s response was accompanied by gesture pointing to a feature of the landscape.  A reading of the transcript cannot meaningfully convey the response of the witness.”

419               On balance it seems to me that Kathleen intended to say that Maisie stayed at the Old Telegraph Station.  I say that because her answers to successive questions suggested that was the case.  She said that she visited Maisie at the Old Telegraph Station and she said that she also saw Lorna there.  But Kathleen said that she did not visit the depot at Six Mile Creek or the Phillip Creek Settlement.

420               Everything hinges on four aspects of Kathleen’s evidence. Did she marry in 1940?  Was her grandmother dead at the time of her marriage?  Were Maisie and Lorna living at the depot at Seven Mile Creek when Kathleen moved to Banka Banka for her marriage?  Was Maisie living at Phillip Creek when the children were removed?  If each of those questions is answered affirmatively, it would mean, in all probability, that the horseback incident never occurred and that it was Maisie and not the grandmother who cared for Lorna at Phillip Creek.  Although I fall short of making formal findings of fact I lean in favour of the memory of Kathleen, as a fifteen year old bride.  I cannot make findings of fact in support of Mrs Cubillo’s assertions.

421               Furthermore, the monthly return for April 1946 that was compiled by the Aborigines Inland Mission shows Lorna as present at Phillip Creek and lists her name underneath a half-caste woman called Maisie.  Added to that, Eileen Napanangka, talking of the day that the children were taken away, said that she and her mother (ie Maisie) locked themselves away when the truck departed.  I am satisfied that Mrs Cubillo has become confused over the years about the whereabouts of Maisie on that fateful day.  The documentary records, supported by the evidence of Kathleen and Eileen Napanangka contradict Mrs Cubillo’s evidence.  I find that Maisie was not working at Banka Banka when the children were taken away from Phillip Creek; she was then living at Phillip Creek.

422               At Phillip Creek, there was a separate dormitory for the Aboriginal girls and a separate dormitory for the Aboriginal boys.  A third dormitory housed both the part Aboriginal boys and the part Aboriginal girls.  Mrs Cubillo said “that was the very first time I realised that we were separated from our full blood relatives”.  That statement does not fit easily with her claim that Mr McGinness called her a “half-caste” at Banka Banka Station.

423               Mrs Cubillo appeared to have a detailed memory of the events that occurred on the day that she and other part Aboriginal children were taken away from the Phillip Creek Settlement.  She said that a green Bedford truck arrived one morning; it was driven by the witness, Mr Les Penhall, who was then a cadet patrol officer.  Mrs Cubillo also said that she saw Miss Amelia Shankelton for the first time that same morning.  Mrs Cubillo did not know what was happening; at one stage she thought the children might be going on a picnic.  Her evidence continued as follows:

“You mentioned babies on the truck, how did the babies come to get on the truck? --- Ms Shankelton prompted the mothers to put the children on the truck and there was a bit of tug-of-war going on between my Auntie Rose and Ms Shankelton with a baby in her arm which she was feeding, breast-feeding.

Sorry, I’ll have to ask you to try and keep your voice up, Mrs Cubillo.  I think you said there was a bit of a tussle going on … ? --- Yes.

… between Ms Shankelton and your Auntie Rose? --- That’s right.

Where were you when you observed that tussle? --- I was already on the truck.

What was your Auntie Rose doing with Ms Shankelton, what was happening? --- They couldn’t communicate because my auntie only spoke her language and Ms Shankelton was trying to ask her to hand the baby over but she was resisting and later on she called me by name, my Aboriginal name Napanangka.

What did she say to you when she called you? --- She just said, ‘Napanangka, take this baby and look after it.’  And she threw herself on the ground.

She threw herself on the ground? --- Yes.

Who handed the baby to you, Mrs Cubillo? --- My Auntie Rose.

How old was the baby, do you know? --- This baby had no teeth, wasn’t crawling and I believe she was around – just my belief that she could possibly have been around about 7 months old.

Were there other people, other Aboriginal people around the truck when this tussle was going on? --- Yes, there were many.  By this time there was a commotion.  There was a lot of people crying, people were hitting themselves with hunting sticks and blood was pouring down their faces.

What about on the truck? --- We were crying and there was a lot of confusion.

What did you think when this commotion was taking place and after a baby had been given to you by your aunt what did you think was going to happen to you? --- I was scared.  I wasn’t even sure if I’d be killed.  I didn’t know what was happening.  I was in a state of confusion and so were the other children.

What was the name of the baby given to you, Mrs Cubillo? ----The baby’s name was Gwen.”

424               Mr Creed Lovegrove, during the course of his evidence, said that death would cause Aboriginal women to wail and cry; it would cause them to hit their heads with hunting sticks until they bled.  He agreed in cross-examination that these actions were signs of enormous distress and extreme sorrow.  However, he would not agree that “these [were] signs as clear evidence of non-consent” in respect of the removal of the children.  But if the removal of the children from Phillip Creek was accompanied by the scenes that Mrs Cubillo and others portrayed in their evidence, Mr Lovegrove was prepared to agree that such would have been a gross violation of human rights.  The inner conflict, with which Mr Lovegrove was struggling, is apparent from the following passage in his evidence during his cross-examination:  it also highlights how attitudes can change and how honest and genuine Mr Lovegrove was in giving his evidence:

“You would’ve been very uncomfortable because that type of removal, as you have agreed, would outrage the feelings of an average or neutral observer? --- I suppose that's the case, yes.  I mean, if I had been instructed to do a certain thing, I might’ve done it, even though it was disturbing to me.

If you’d been instructed to do it? --- Mm mm. I - I never had to take that test.

When you say you never had to take the test, what I suggest to you, Mr Lovegrove, is as a consequence of the way in which you had been brought up, and your knowledge of Aboriginal people, that you would not have been a party to such a removal? --- I’m not too sure. I mean, I - through my eyes of today, it is offensive to me.  Whereas, as a young cadet patrol officer, a senior officer came along to me and said, ‘This is what you have to do’, I don’t know whether at that stage I would’ve been - had enough - excuse the expression - guts to say, ‘No, I won’t do it’. I don’t know.”

In re-examination, Mr Meagher QC put to Mr Lovegrove a softer version of the events at Phillip Creek, adding in particular that Miss Shankelton had obtained the parents’ consent.  In response, Mr Lovegrove said in those circumstances, wailing and crying would be “because the children were leaving their loved ones”.

425               Mrs Cubillo named each of the sixteen children who were taken from Phillip Creek and under cross-examination told of the present whereabouts of each of them.  Five are now dead; two of them, Jimmy Anderson and Willy Lane gave evidence on her behalf.  Three were living interstate.  Of the remaining five, two, who were living in Tennant Creek, were not called as witnesses and no explanation was offered for their absence.  It would have been of value to have heard their evidence about the move from Phillip Creek and of their experiences at and their impressions of the Retta Dixon Home and its staff during the time that they and Mrs Cubillo were residents at the Home.  Mrs Cubillo agreed in cross-examination that Ms Barbara Cummings and another of her friends, Ms Valerie Day, both former residents of the Retta Dixon Home at the same time as Mrs Cubillo (although each of them was younger) had been present from time to time during the Court hearing in Darwin.  It would have been of value to have learnt of their memories of how they were treated when they were living at the Retta Dixon Home but neither gave evidence.

426               Mr Jimmy Anderson, said that he believed his date of birth to be 6 May 1939 although, as he said, he was given that date when he was an inmate of the Retta Dixon Home.  He said that his mother and Mrs Cubillo’s mother were sisters and although, in conventional European terms, that would mean that Mr Anderson and Mrs Cubillo were first cousins, he said that in Aboriginal law they are classed as brother and sister.  Mr Anderson, who did not know the identity of his father, said that he was born at Seven Mile Creek and that, at some stage of his life, he also lived at Banka Banka Station.  From Banka Banka Station he was transferred to Six Mile Creek.  Asked who had transferred him he replied “it was Welfare”.  He said that he thought that the name of the officer from Welfare who transferred him was a Mr Sweeney.

427               Mr Anderson said that it was his understanding, from what his mother had told him, that it was Government policy that caused the move to Phillip Creek.  It was put to him during cross-examination that it was because of lack of water and because of the war but he answered:

“No, the government policy was they – they rounded up all the tribe and put them in one place and then they took them to Phillip Creek.”

428               Like Mrs Cubillo, Mr Anderson was also taken with the other children from Phillip Creek to the Retta Dixon Home in Darwin.  He said that he could recall Mr Sweeney at Phillip Creek and also another man to whom he referred as “old Bill Harney”.  However, in cross-examination, Mr Anderson volunteered that Mr Penhall was the driver of the truck and that Miss Shankelton sat in the front of the truck.  Other evidence in the trial has satisfied me that Mr Anderson’s memory has let him down.  No other witness suggested that Mr Sweeney and Mr Harney were present at Phillip Creek on the day when Miss Shankelton and Mr Penhall took the children away.

429               According to Mr Anderson, about fifteen or sixteen children were loaded onto the truck; he said that their ages ranged from nine years downwards.  His recollection was that there was an Aboriginal man travelling with them on the back of the truck.  He said that the youngest child was only a baby and he remembered her name as Gwennie Rose; that statement supported Mrs Cubillo’s evidence.

430               Mr Anderson said that he did not know whether Miss Shankelton had obtained his mother’s permission for him to leave Phillip Creek.  He added, however, that his mother could not speak English and “she wouldn’t have understood it anyway”.  He confirmed Mrs Cubillo’s evidence that the Aboriginal people were upset, describing some of them as “screaming and crying”.

431               At first, Mr Anderson thought that the children were going to a swimming hole which was past Banka Banka Station but the Aboriginal man who was accompanying them on the back of the truck told them that:

“You blokes aren’t coming back.  You’re going to Darwin.”

It was put to Mr Anderson in cross-examination that when he and the other children travelled from Phillip Creek to Darwin there were two Aboriginal women on the back of the truck but Mr Anderson said that it was his recollection that there was only one old man – there were no Aboriginal women.

432               Mr William (Willy) Lane said that he was born at the Six Mile depot but that, at an early stage of his life, he moved, with his mother and other members of his community, to Phillip Creek.  He said that he believed that he was born in either 1939 or 1942 but that he uses the date 7 December 1942 as his birth date.  He has no knowledge of his father save, as I infer, that he was European and that the name Bert Lane appears as “Father” in his birth certificate.  At Phillip Creek he lived with his mother, brothers and sisters and not in a dormitory.  That suggests that he was one of the younger children and supports the proposition that he was, more likely than not, born in 1942, four years after the birth of Lorna Nelson.  His mother, who looked after the goats at the Settlement, could not speak English, nor could he.

433               His recollection was that Mr Thomas, who he erroneously thought to be a government official, was the Superintendent at Phillip Creek.  He also recalled that Mr Colley was at the Settlement, but he could not remember in what capacity: nor could he remember whether there was a school at Phillip Creek.  Asked what he remembered of the day that he left Phillip Creek, Mr Lane said that the children “were all dressed up with new clothing”, their photos were taken and they were promised a picnic.

434               He identified Miss Shankelton as the person who took the children’s photograph and Les Penhall as the person who drove the truck.  He said that he did not see either of them speak to his mother.  He said that he recalled driving away from Phillip Creek and when asked to describe what he recalled he said:

“Seeing our mother crying as we were leaving.”

Phillip Creek to the Retta Dixon Home

435               Exhibit A20 comprised three records from the files of the Aborigines Inland Mission showing that on 26 July 1947 the three girls named in those records were admitted to the Retta Dixon Home.  Mrs Cubillo recognised each girl as having travelled with her from Phillip Creek to the Retta Dixon Home.  Although Mrs Cubillo could not remember the date of her admission to the Home, and although her admission record was not located, I find, on the basis of the records in exhibit A20 and Mrs Cubillo’s identification of the three girls, that Mrs Cubillo was also admitted to Retta Dixon Home on 26 July 1947.

436               The third of those girls mentioned in exhibit A20 was named “Rose, Gwen” and against the entry “Parents” appeared the word “Rosie”.  This suggested therefore, that this third girl was the baby, Gwen, to whom Mrs Cubillo had referred in her evidence.  But there was a further entry that purported to state that the child Gwen was born at Tennant Creek on 23 April 1945.  Once again, I cannot accept the literal accuracy of this birth date:  at the most it would have been an educated guess by some person who was responsible for admitting the children to the Retta Dixon Home.  But it purported to relate to a female child aged two years and three months; that was not consistent with a baby who, according to Mrs Cubillo’s memory, was only about seven months – one who was so young that Lorna, as a child of nine, had to nurse and care for her on the trip to Darwin.  According to Mrs Cubillo, the child was so young that it had not yet teethed and had to be sustained by her dribbling water from her mouth into the baby’s mouth.  Exhibit R53 was a document entitled “Native Settlement Tennant Creek Monthly Returns”.  It was dated 20 April 1946 and it recorded a female child by the name of Gwen being present at the Settlement.  If this child and the baby on the truck were one and the same person, it meant that in July 1947, when the children left Phillip Creek, fifteen months had elapsed since Gwen was recorded on the monthly return.  Mrs Cubillo did not dispute the contents of the document or suggest that there were two babies of the same name.  There is quite a difference between a seven-month-old baby and one who is fifteen months or more.  I feel that the episode of caring for Gwen during the journey has been magnified in Mrs Cubillo’s memory over the years.  I accept that she cared for a small child during the journey and I accept that there were scenes of extreme distress and emotion when the children left, but I fall short of accepting that the baby was only seven months old and was still being breastfed.  Either the child to whom Mrs Cubillo referred was a different person to the one whose details were recorded in exhibit A20 but – bearing in mind the same Christian name and the name “Rosie” as the mother of each child – that is unlikely, or, as was more likely the case, the drama of looking after the young child had escalated in Mrs Cubillo’s memory over the years and, in fact, the child was much older than Mrs Cubillo remembered.

437               Exhibit A74:A28 was a photocopy of an article dated 17 September 1947 from the newsletter “Our Aim”; it was attributed to Miss Shankelton.  It read in part:

“Arrangements having been made by the Native Affairs Branch for the transfer of half-caste children at Phillip Creek to our Home in Darwin and for me to accompany them back.  I travelled by plane on 23rd July to Tennant Creek where our missionary, Mr Thomas, met me, conveyed me to Phillip Creek.  It was a privilege to be able to meet the mothers and friends of the children and to tell them something of the Home and of the opportunities for their children and of our intention of keeping the children in touch with their mothers.  Although they were pleased to have their children cared for and given full educational opportunities, the parting was hard.”

438               The missionaries in Darwin knew, at least a week before the movement of the Phillip Creek children, that it was to occur.  In an article in “Our Aim” dated 17 July 1947, Ms Dinham had written:

“Seventeen more children at Tennant Creek are waiting to enter the Home, but we feel we cannot take them until our staff is added to, which we trust will be so before very long.”

439               Mrs Cubillo had said in her evidence that Peter Hansen, a half-caste boy, had jumped off the truck and escaped into the bush.  If she were correct, he would have been the seventeenth child.  Her assertion was contradicted, however, by Mr Penhall.  He said that he prepared a list of the names of all of the children on the truck and that the name Peter Hansen did not appear; he thought that he prepared his list as the children were being loaded onto the truck, and if this was correct, one would have expected the name of Peter Hansen to have appeared on it.  He said that his list was based on information given to him by Miss Shankelton.  The penultimate name on his list was “Gwen” and her age was said to be two years.  Three of the children were said to be that age but none was any younger.  Jimmy Anderson supported Lorna’s claim however.  He said that “one young boy jumped off the truck” and he said that he found out years later that it was “Peter Hansell (sic)”.  The article by Ms Dinham in “Our Aim” which referred to seventeen children also supported Mrs Cubillo.  None of the other witnesses who were called on Mrs Cubillo’s behalf said anything about a boy jumping off the truck and Mrs Cubillo neither called Mr Hansen to give evidence nor provided any explanation as to why he was not called to support her allegations.  Whether Peter Hansen did, or did not jump off of the truck is not a matter of importance.  The episode is only worthy of mention because it is another example of how the memories of witnesses have become clouded and confused as a result of the effluxion of time.

440               There was no acceptable evidence, one way or the other, that would justify a finding that Aboriginal families were consulted about their children being taken from Phillip Creek to the Retta Dixon Home:  nor was there any direct evidence that would support a finding that they were not consulted.  Mrs Cubillo and the other Phillip Creek children were admitted to the Retta Dixon Home on 26 July 1947, and, as there can be no doubt that the trip from Phillip Creek to Darwin must have taken up at least one, if not two, overnight stops, Miss Shankelton’s arrival date of 23 July at the Phillip Creek Settlement, would indicate that she had little time to talk to the families of sixteen or seventeen children, explaining to them her ideas about the benefits that their children might enjoy by being taken from them.

441               Even though Mr Penhall was a person of some authority as a cadet patrol officer, his evidence, which I accept, was that he had no involvement in the removal of the children other than as the driver of the truck.  He was not instructed to confer with the Aboriginal people and he did not discuss the children’s removal with them.  Although the evidence revealed the part that was played by Mr Penhall in the removal of the children, it did not disclose the extent of Miss Shankelton’s involvement and it disclosed nothing about the part played by Mr Thomas, the missionary in charge of the Phillip Creek Settlement, or his wife, or Mr Colley, the school teacher.  What little that is known about Miss Shankelton was limited to the contents of her article in the newsletter “Our Aim”.  When that article is read carefully, it would not prevent a conclusion that the children were taken against the wishes of their families.  What then was the identity of the party who effectuated the removal of the children?  Was it the Aborigines Inland Mission, assisted by the Native Affairs Branch making Mr Penhall and a truck available for transport?  Or was it the Native Affairs Branch assisted by staff members of the Aborigines Inland Mission?  Or was it a joint exercise of the Aborigines Inland Mission and the Native Affairs Branch?  Before attempting to answer those questions, some consideration should be given to the personal circumstances of eight year old Lorna.  Viewed through the eyes of the missionaries, there was the possibility that she would have been treated as an orphan.  There was no evidence to suggest that her existence was known to the Native Affairs Branch.  Her grandmother had died.  Her father was a white man but it is reasonable to assume that the missionaries would have proceeded on the premise that he had abandoned her.  If they knew her biological background, they would have known that her mother was dead.  On the other hand, if they, like Lorna, thought that Maisie was her mother, was Maisie a resident at the Phillip Creek Settlement as I have found – or did she work at Banka Banka Station some forty miles from the Settlement.  Mrs Cubillo said that Maisie used to visit her at the Settlement regularly and that, on occasions, she got a lift on the butcher’s truck.  If this were true, were those visits known to the missionaries?  Did the missionaries know and understand the strong bond of the Aboriginal extended family?  Or did they see a part Aboriginal eight year old girl with no one to care for her?  These would have been legitimate inquiries but they cannot be made; all the missionaries are dead.

442               It was submitted on behalf of the Commonwealth that the length of time that Miss Shankelton spent at Phillip Creek was not critical to the question of whether or not the mothers consented to their children being taken away.  I disagree.  There was other evidence pointing to the practice of long discussions and lengthy periods of time being spent in the decision-making process in matters of importance to Aboriginal people.  Obtaining the consent of the families of sixteen or seventeen children in a period of no more than twenty-four hours seems highly unlikely.  This finding, which I acknowledge points to a non-consensual movement of the children, does create substantial prejudice to the Commonwealth because it is denied the opportunity of calling witnesses who might rebut such a finding.  Miss Shankelton is dead, Mr Moy, the Director of Native Affairs of the day, is dead and so is Mr Thomas the Superintendent of the Phillip Creek Settlement at the time of the children’s removal, his wife and Mr Colley, the school teacher.  It is true that Mr Penhall has lived to give evidence, but his involvement in the matter was minimal; that was understandable, as he was a cadet patrol officer whose instructions were limited to acting as a transport officer.  Over and above the absence of these crucial witnesses, was the total absence of any documentary records that dealt with the subject of the children’s removal.  Perhaps they existed and have since been lost or destroyed as a result of Cyclone Tracy or through some other unknown cause.  Perhaps no such documents ever existed.  Should that be the case, one might think that the Native Affairs Branch had no official involvement in the decision to remove the children.  One would think that a Government Department that was involved specifically (as distinct from merely lending a truck and a driver) in the removal of sixteen part Aboriginal children from their families would have recorded such a decision in writing.

443               Of course, there was the possibility that Mr or Mrs Thomas or Mr Colley may have counselled the families prior to Miss Shankelton’s arrival.  But that is conjecture; there was no evidence that pointed to that having happened.  This episode shows the difficulties that were faced by both the applicants and the Commonwealth.  So much time has passed:  so many witnesses are dead, that it is not possible to proceed with confidence.  Whether or not Miss Shankelton’s article is accepted as literally accurate, the following matters are of interest.  First, she said that the arrangements were made “by” the Native Affairs Branch – not “by” the Aborigines Inland Mission with the consent or cooperation of the Branch.  Secondly, the article referred to “the transfer of half-caste children”; no mention was made of full blood children.  Thirdly, a fair reading would suggest that Miss Shankelton had no difficulties in communicating with the mothers and in obtaining their consents, but that would have been quite remarkable having regard to the unchallenged evidence that some, at least, of the mothers did not speak English and to other anecdotal evidence of the extensive periods of time during which patrol officers negotiated with mothers for the removal of their children.  Fourthly, it would seem that the mothers were told of the mission’s intention “of keeping the children in touch”.  In the case of Mrs Cubillo, at least, that intention did not come to fruition.  Fifthly, although the opening sentence acknowledges that the Native Affairs Branch had made arrangements, other sections in the article had overtones of control by the Aborigines Inland Mission.  First, there was the physical presence of Miss Shankelton; then there were the references in the article to “the Home”, obviously meaning the Retta Dixon Home; and there was the implied promise that the missionaries – not the Native Affairs Branch – would keep the children in touch with their mothers.  Finally, to say that “the parting was hard” is to understate grossly the sorrow and despair of that day.  I do not believe that Miss Shankelton’s language truly described the terrible pain that the children and their families suffered.

444               Asked to describe the impact on her when she left Phillip Creek on the truck Mrs Cubillo replied:

“I’d been upset and confused and I’d find it hard to sleep at night.  I’ll – I’ll never forget what happened to me on the day I – when I was removed.”

445               I have no difficulty in accepting this passage from Mrs Cubillo’s evidence.  She was a young child – no more than eight years of age.  Mrs Cubillo received great comfort from her extended family and the community at the Settlement.  She was accepted in the community and felt part of it.  No matter the circumstances of her leaving, whether it was or was not with the informed consent of those who cared for her, it 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 continues to suffer.  I believe her.

446               Nevertheless, despite the sadness of that event, I am of the opinion, as I have said, that Mrs Cubillo has, in some instances, engaged in a process of reconstruction, or, perhaps subconsciously, has allowed events to magnify over a period of time.  Mrs Cubillo’s insistence that Barney McGinness used the word “half-caste” after he had washed her leg in the creek at Banka Banka Station is an example.  It was Mrs Cubillo’s evidence that she knew no English until she went to Phillip Creek and that she did not know that there was any difference between part Aboriginal and Aboriginal people until she went to Phillip Creek.  In those circumstances, based on her own evidence, it was not possible that a part Aboriginal girl, who was then no more than three or four years of age, would recognise and retain a memory of an English word that had no significance to her.  Her evidence about the baby, Gwen Rose is another example.  Then there was Mrs Cubillo’s evidence that Miss Shankelton arrived and left Phillip Creek in the one day.  Perhaps Mrs Cubillo, in giving this evidence, only intended to convey that she had not earlier seen Miss Shankelton at the mission.  Yet Mrs Katona recorded in a document that she prepared that Mrs Cubillo had told her that Miss Shankelton had spent three weeks at Phillip Creek.

447               I return to consider the further evidence of Mr Penhall.  In 1947 he was a young man of twenty-four; he was still only a cadet patrol officer and he was yet to attend his course of lectures at the Australian School of Pacific Administration.  He said that he could recall being requested “to go to Phillip Creek and pick up some children and take them to Darwin”, but he could not recall when he received his instructions or from whom the instructions were received.  He was able to say, however, that he had not been given a list of the names of the children who were to be taken to Darwin and, as far as he could recall, he had no document that authorised him to compel the children to go with him.  He believed that he was acting as the Superintendent at the Yuendumu Settlement at the time when he was instructed to go to the Phillip Creek Settlement.  A piece of documentary evidence was located.  It was a telegram from Fred Gubbins; it read:

“Superintendent

                                    Yuendumu

Will be yours Wednesday evening with truck and utility.  Will return with Penhall Thursday.

Gubbins.”

The telegram supported his belief that he was at Yuendumu at the time and it does not really matter whether he or someone else was then the Superintendent.  Mr Penhall could only assume that his instructions to go to Phillip Creek would have come from his District Superintendent in Alice Springs.  That, in turn, would suggest that someone in authority in Darwin would have issued an appropriate instruction.  Again the paper trail is cold; the only documentary evidence that remotely touched upon the subject was an extract from Mr Penhall’s diary which read as follows:

“Fred Gubbins and I left Yuendumu in Mr McCoy’s ute 10.30 am, 17.7.47 arrived Alice 5.10 pm.”

448               Mr Penhall’s recollection of his arrival at Phillip Creek was as follows:

“When I got to Phillip Creek again I recall that there was a large gathering of Aboriginal people.  There was a group of young children.  The young children were cleanly dressed and were, as far as I was concerned, ready to be transported.”

449               Mr Penhall said that Miss Shankelton was already at Phillip Creek when he arrived there.  He spoke to her; he asked her if the children were ready to move.  He said that she replied to the effect that:

“… it had been discussed with the parents of the children.  They had been told that they were going on a picnic for 2 or 3 days and then they would be going to live in a house and go to school in Darwin.”

450               Mr Penhall was shown a copy of the extract from the AIM newsletter in which Miss Shankelton recorded her version of the movement of the children from Phillip Creek.  He said that he had no knowledge of the arrangements that may have been made by the Native Affairs Branch with Miss Shankelton and to which reference was made in the newsletter.  He agreed however, with its account of the events at Phillip Creek, saying “… that seems to be quite consistent with my recollections …”.

451               Mr Penhall said that he did not speak to any of the adult Aboriginals.  It was his understanding that Miss Shankelton had already done that.  He said that no adult Aboriginal complained to him about the children leaving on the truck.  He said that the only other white people at the Settlement when he arrived were the missionary Mr Thomas and his wife and children.

452               It was Mr Penhall’s recollection that, in addition to Miss Shankelton and the children, there was an Aboriginal man and two Aboriginal women on the truck.  He said that when he drove off “there was some wailing coming from the Aboriginal women” and he added that some of them ran after the truck “but they didn’t run very far”.  He said that he regarded that as the normal reaction of Aboriginal people when someone was leaving their community.  In my opinion, Mr Penhall’s memory has blurred the misery of that occasion.  Mr Penhall agreed that wailing in Aboriginal culture is a sign of great grief as is the striking of the head and the drawing of blood.  However, Mr Penhall did not admit to seeing any blows to the head or blood at Phillip Creek.  As he said “I was too busy driving the truck”.  In re‑examination, he went so far as to agree that he did not see any signs that suggested that the parents were opposed to the children going.  Despite Mr Penhall’s memories of that day, I remain satisfied that it was an occasion of intense grief.

453               Mr Penhall said that, subsequent to the removal of the children from Phillip Creek, he had occasion to visit Phillip Creek “on fairly frequent occasions”.  He said that the same Aboriginal people were there but that he received no complaints or inquiries about the children.  He also said that, in later years, one of the children, Olive Kennedy (who is now dead) worked with him in the Aboriginal Liaison Unit of the Chief Minister’s Department.  He said that he saw Ms Kennedy on a daily basis and that she never complained about the fact of her removal from Phillip Creek.  There is an incongruity in Mr Penhall’s evidence on this subject, because, during the course of his cross-examination, he was referred to the book that Bill Harney had written, North of 23 [Degrees]: Ramblings in Northern Australia, Australasian Pub. Co, Sydney, 1946.  In it, Mr Harney described the grief that Aboriginal people, and the mothers in particular, suffered when the children were taken from them.  Mr Penhall did not substantially disagree with the passages that were read to him from the book:

“A station homestead or a native camp where, amidst laughter, swimming or maybe out hunting with their father or mothers, these little half-castes would live among their own people, tended by all the tribe and particularly by a mother whoever watches over her child and tends to its wants.

Then one day that child will be taken away and great would be the wails which came from the camp.

Blood would flow from the head of the mother as she gashed it with stick or stone in anguish for her lost child.

Yet after a few days all is forgotten as most people forget.

Nevertheless, that mother still yearns for her lost one and carries little bits of its clothes around in memory of her child.”

454               Mr Penhall was asked in cross-examination what explanation was given by or what consent was obtained by the Native Affairs Branch with respect to the removal of the Phillip Creek children.  His answer was “I can’t answer that in individual cases”.  He agreed that he was the only Native Affairs officer in the area at the time but he would not agree that it was for him to explain to the mothers what would happen.  He said that the explanation was given by Miss Shankelton.  Asked how he had satisfied himself about that, he said he relied on what Miss Shankelton had told him.  But, as he later acknowledged, Miss Shankelton was not an employee of the Native Affairs Branch and she had no authority to speak for it or to act in its name; only Mr Penhall could have done that, assuming of course, that as a cadet patrol officer, he would have been given the necessary authority to act in the name of the Director of Native Affairs.  There is the possibility that Miss Shankelton did explain to the mothers what was happening and, perhaps, her explanation was acceptable to them.  But it still leaves open the question whether Mr Penhall had any instructions, or an obligation, to satisfy himself that the children were being removed with their mother’s consent.  There are, at least, two possibilities.  The Director decided to remove the children with the cooperation of Miss Shankelton and her mission from Phillip Creek to Darwin; that is one possibility.  The second possibility places the emphasis on the Aborigines Inland Mission.  It decided that the children should be removed from its mission at Phillip Creek to Darwin and for that purpose it sought and obtained the assistance of the Native Affairs Branch in the form of Mr Penhall and his truck.

455               As a result of Mr Penhall’s evidence and the implied acceptance by his cross-examiner that Miss Shankelton’s article in the AIM newsletter correctly recorded dates, it would seem appropriate to make the following findings:  first, the Phillip Creek Native Settlement was being managed by Mr Thomas, a missionary of the Aborigines Inland Mission; secondly, that mission operated the Retta Dixon Home of which Miss Shankelton was the Superintendent; thirdly, Miss Shankelton arrived at the Phillip Creek Native Settlement at some unspecified time on Wednesday 23 July 1947; fourthly, Miss Shankelton with the sixteen children set off in a truck driven by Mr Penhall from Phillip Creek at about 9.00 am on Thursday 24 July; fifthly, Mr Penhall was a cadet patrol officer employed in the Native Affairs Branch and he attended at Phillip Creek in that capacity pursuant to an instruction from one of his superior officers; sixthly, the party spent two nights on the track before reaching the Retta Dixon Home in Darwin on Saturday 26 July 1947.

456               Based on those findings, and there being no evidence that any other person in authority (such as Mr Thomas, the Superintendent of the Settlement) consulted with the mothers of the children, there was very little time available to Miss Shankelton to explain – even collectively – to the families of sixteen or seventeen children what was happening and to obtain informed consents for the children’s removal.  Even allowing for the fact that there would be sorrow and distress at a consensual parting of children from their mothers, Mr Penhall’s evidence could still be consistent with the forced removals of the children; I say that because of the answers that he gave towards the end of his cross-examination:

“What went on at Phillip Creek when those children were getting onto the truck, and when you drove the truck out of Phillip Creek, was a scene that you would not want to see again, isn’t it? --- It’s one that I wouldn't like to see again, no.

Because it was a highly charged and emotional event? --- It was an emotional event.

And just so we are under no misunderstanding in this court, you say to this court that you remember mothers running after the truck? --- They did.”

457               I remain satisfied with Mr Penhall’s evidence that he, a young man and still a cadet, relied on Miss Shankelton’s advice that she had explained everything to the mothers; I realise that there is a possibility that Miss Shankelton may have believed that, by telling the mothers of the imminent departure of their children, their lack of complaint amounted to consent.  I cannot, however, make a finding that any of the mothers gave their informed consents to the removal of their children.

The Four Tennant Creek Women

458               The four elderly Aboriginal women from Tennant Creek had each known Lorna as a small child.  Although there were elements of confusion and contradiction in parts of their evidence, I am satisfied that each of them gave her evidence with honesty and to the best of her ability.  It was difficult to gauge their ages; they said that, as children, they did not understand the concept of age.  However, I would think that it is safe to assume that each was in her late sixties or early seventies; they were all older than Mrs Cubillo.  Mr Dreyfus, who led for the applicants during the hearing in Tennant Creek, explained that the preferred form of address of the first two witnesses – two sisters – was Napanangka.  However, they were also known respectively as Kathleen and Eileen and it will be necessary for me to use those western Christian names to distinguish their evidence.  The third and fourth witnesses shared the preferred name Napurrula, but for the same reason, I will have to refer to them as Bunny and Annie.

459               All four women said that they do women’s ceremony for their country.  In some cases that was singing:  in other cases dancing.  In addition, Annie Napurrula teaches bush medicine and bush tucker to the children in the Tennant Creek High School.  The women claimed, and I accept, that they have knowledge of hunting, bush tucker and stories.  They learnt those things as children from the old people.  Asked whether Lorna knows “women’s business for her country” Kathleen answered “I don’t know whether she knows anything or not”.  I am satisfied that Mrs Cubillo does not possess any of those talents.  In fact, everything about Mrs Cubillo points to her having a strong urban background.  She dresses well, she speaks clearly and firmly, but above all, her work history and her determination to educate herself and to improve her station in life are all familiar characteristics of persons wishing to succeed in a western culture.

460               Kathleen and Eileen know the ceremonies for their country, which is in the vicinity of the Old Telegraph Station (that is, the depot at Seven Mile Creek).  Kathleen said that her aunt taught her ceremony for her country and that she still does women’s ceremony.  She sings in the ceremony while other women dance.  She said that she still looked after her country and has spoken for it in Land Claim Hearings.  In addition to doing ceremony in accordance with Aboriginal tradition, Kathleen, with other women, also visits schools, teaching the children Aboriginal culture.  As an acknowledgment of their positions in their community, both Kathleen and Eileen were members of a group of twelve or so Warumungu people who visited Melbourne in 1998 to perform ceremonial dancing on the occasion of the launching of the HMAS Warumungu.

461               The evidence of Kathleen Napanangka dealt with her life at the depot at Seven Mile Creek and at Banka Banka Station where she lived for almost thirty years; she said that she knew Lorna at the depot.  On the other hand, Eileen, Kathleen’s sister, knew Lorna at Phillip Creek, as did the sisters Bunny and Annie Napurrula.  Eileen, Bunny and Annie were living at the Phillip Creek Settlement when Lorna was there.  Each of them gave evidence about the occasion when Lorna and the other part Aboriginal children were taken away from the Settlement.

462               The mother of Kathleen and Eileen was Maisie but it was not established that they had a common father.  During the course of her evidence, Kathleen agreed that she was about fifteen years of age in 1940; on that basis, she would now be about seventy-four or seventy-five.  Kathleen would therefore be about twelve or thirteen years older than Lorna.  No attempt was made to establish the age of Eileen but she also appeared to be much older than Lorna.  Kathleen explained that Lorna was her tribal sister as they shared a common grandmother and their mothers were sisters, but it was not established that they shared a common grandfather, although they may have.  Kathleen gave no evidence about her father other than to say that he passed away when she was young.  Nothing else is known of him.

463               Kathleen, during the course of her evidence in chief, said that her mother Maisie, had three children – two girls and a boy – whose father was a white man.  She said of them that they “were taken away”.  The subject of their removal was not developed in evidence and no reference was made to these children by Eileen.  Kathleen acknowledged that, when she was living at Banka Banka, her children went to school at Alice Springs, returning home to her during the school holidays.  Those children continued to speak their native tongue (Warumungu) and, ultimately, returned home to live with her after they had finished their schooling.

464               When she was about fifteen, Kathleen left Seven Mile Creek and went to Banka Banka Station where she married the head stockman.  Her culture did not permit her to name her husband as he had since died, but she was able to agree that, as a result of her marriage, she began to use the name Simmons.  As I have said, it was Kathleen’s evidence that when she went to Banka Banka, Maisie stayed behind with Lorna at the Seven Mile depot, continuing to work as a cook.  Mrs Cubillo did not address this issue in her evidence.  If the dates that have been given in evidence are reasonably accurate then Lorna, having been born in 1938, would have only been two when Kathleen moved to Banka Banka in 1940.  No one would expect a child of such tender years to have any memory of events at that age.  Maisie came to Banka Banka, according to Kathleen’s evidence, only after Lorna had been taken away to Darwin.  And, of course, there was Kathleen’s evidence that their grandmother Alice had died by the time Kathleen went to Banka Banka in 1940.  Perhaps the reconciliation of that evidence with Lorna’s lies in Kathleen having married later than 1940.  Or perhaps, despite what I have just said, Kathleen was mistaken and her grandmother was not dead when Kathleen married.  It is important to emphasise the divergence in the evidence for it shows how the memories of witnesses about significant matters can fade over such an extended period of time.  Both witnesses spoke with assurance and I have no doubt that each believed in the accuracy of her evidence.  But the fact remains that if the grandmother died in about 1940, then she could not have been caring for Lorna at Phillip Creek.

465               As I have said, the probabilities are that Kathleen’s memory should be preferred to Lorna’s.  Mrs Cubillo was trying to remember not only events, but the chronology of events, that occurred when she was very young; she was only two years of age when Kathleen married in 1940 and Kathleen, as a young bride would, more likely than not, remember whether her grandmother was at her wedding.  My preference for Kathleen’s memory does not mean that I am discrediting Mrs Cubillo as a witness.  But it does show how difficult it is for anybody to recall events that occurred so long ago and how difficult it is for the Court to proceed with confidence.  It places in doubt that part of Mrs Cubillo’s evidence about Messrs Harney and McGinness removing her from Banka Banka and it places in doubt her evidence about her grandmother’s presence at the Phillip Creek Settlement.

466               When Kathleen went to Banka Banka Station, it was owned and operated by Mr and Mrs Ward.  The Commonwealth tendered in evidence a video program that had apparently been produced in 1969 for public screening through television.  It was entitled “The Missus of Banka Banka”.  I received it as an exhibit during the course of Kathleen’s evidence because, on viewing it, she was able to identify Mrs Ward as the principal participating party in the documentary.  Counsel for the Commonwealth used the video for the purpose of highlighting statements that had been made by Mrs Ward during the course of the documentary; he then asked Kathleen to comment on Mrs Ward’s statements.  Kathleen acknowledged that she knew Mrs Ward well as “The Missus” or “the boss lady” and in later life as “the old fella missus”.  She spoke of Mrs Ward in the kindest of terms, acknowledging that when she sold the station and moved to Tennant Creek she provided a home – also at Tennant Creek – for Kathleen and her family.  Kathleen, in responding to statements that were attributed to Mrs Ward in the documentary, agreed that “the Missus” told her what was good for her and she also agreed that Mrs Ward taught Aboriginals how to look after themselves and their children in terms of health, hygiene and food.  Mrs Ward was very insistent on the children’s education, going so far as to pay for the education of Kathleen’s children at a convent in Alice Springs.  Kathleen agreed that the Aboriginal mothers “were happy” for their children to be educated.

467               Kathleen also agreed that Mrs Ward was insistent about proper care for the health of the children; she ensured that the children were cared for properly and kept clean; she conducted medical inspections of the children.  Kathleen agreed, when it was put to her in cross-examination, that conduct and control, such as that exercised by Mrs Ward, meant that it was a better life for the children than life in the native camps.  One scene from the documentary showed a group of about twelve children at a table eating a meal using knives and forks.  Kathleen agreed that it was part of the routine at the school at Banka Banka to give the children a midday meal, teaching them standard table manners including the use of crockery and cutlery.  The conduct of Mrs Ward and her attitudes, as displayed in the video, but, more importantly, as identified and verified by Kathleen in her evidence, were powerful reminders that there were European people in the Northern Territory in the 1940s who were dedicated in their concerns for the health and education of Aboriginal and part Aboriginal people.

468               Mr Penhall reported on an inspection that he conducted of Banka Banka Station.  It is not clear when this inspection took place as the report was not dated.  However, it is sufficient to say that it was in the late 1940s.  The matter of interest is to record the glowing description of the facilities for the Aboriginal and part Aboriginals at the Station:

“Accommodation:  Each family has own accommodation, 6 married mens’ huts, one single boys’ hut, one single girls’ hut, three showers provided.  Laundry facilities provided, Two-pan type latrines.  Cyclone stretchers and mattresses.  Whole area kept very clean, each house had been swept and beds made.  Huts provided at stock camp.

Health:  Very good.  No medical supplies at present, but Station is connected by telephone to Tennant Creek.  All children on the Station have been immunised against diphtheria.  The Station has an excellent garden, natives are allowed as much as they can eat.”

In his report Mr Penhall noted the presence of:

“Half Caste:  One male, F---, aged 45 years, married to Kathleen, 7/8 black, three children:  Priscilla … David … and Billy.”

The Kathleen, to whom reference was made in his report, is Kathleen Napanangka, Mrs Cubillo’s tribal sister.  Priscilla was a child of Kathleen Napanangka.  Mr Penhall’s report included the note that Priscilla was attending at a Convent in Alice Springs and that the younger boys will be sent to the convent on attaining school age.  He then wrote:

“Mr. And Mrs. Ward are paying the school fees of both Priscilla and E. M. Windley.  They don’t agree with the Department’s policy of removing part aboriginals from their mothers, so they have decided to send the children to school at their own expense.  They will pay for David and Billy’s education when they become of age.

I explained that if every employer sent the part aborigine children to school the Native Affairs Branch would not  have to remove them.  It was a job no one liked, but it gave the children an opportunity to lift themselves out of their environment.”

469               EM Windley was Ethel May Windley, another part Aboriginal child who was then living at Banka Banka.  Mr Penhall’s report is interesting in several respects.  First, it shows the reaction of Mr and Mrs Ward, the owners of Banka Banka to “the Department’s policy” of removal.  Why would they oppose a policy if it were only implemented with the mother’s consent?  Secondly, it shows, however, that they were not adverse to “the removal” of children in the more limited sense of sending them to boarding school.  Thirdly, it is another piece of evidence pointing to the distress that the patrol officers encountered when the time came to enforce the policy; and finally, the note that it “gave the children an opportunity to lift themselves out of their environment” supported Mr Penhall’s belief that the policy was based on what was perceived to be in the best interests of the child.

470               On 2 May 1950, patrol officer Bray compiled his report and noted in respect of the children at Banka Banka Station that:

“The children are particularly well cared for and Mrs Ward desires to send all the part aboriginal children to school as soon as they become of age.”

471               I have no reason to doubt the accuracy of the reports to which I have referred.  Using them as a base, I therefore conclude that in 1949 and 1950 there were part Aboriginal children living at Banka Banka; they included Ethel May Windley and Priscilla and her brothers David and Billy, children of Kathleen Napanangka.  Their whereabouts and their presence at the Station were known to the Native Affairs Branch as is evidenced by the patrol officers’ reports.  It is also implicit from the patrol officers’ reports that no action was then contemplated by the Native Affairs Branch by way of removing those children from their families.

472               The probability is that Eileen Napanangka is older than her sister Kathleen because she said in evidence that she was married before the war and her two children were born before war broke out.

473               Eileen first lived at the Old Telegraph Station, then at the depot at Six Mile Creek before moving to Phillip Creek.  In this she differed from her sister Kathleen, who made no mention of living at the Six Mile depot.  Eileen’s memory also differed from that of Kathleen’s in respect of the missionary Mr Long.  Kathleen said that he was stationed at the Old Telegraph Station (ie the depot at Seven Mile Creek), whereas Eileen said that Mr and Mrs Long were at Six Mile Creek.  In fact, I find that Mr and Mrs Long moved from the Seven Mile depot to the Six Mile depot when the whole community was moved to the new site.  Eileen and her husband, who has since died, were living in the Phillip Creek Settlement when Lorna was there.  He worked as a butcher; Eileen did not work.

474               Eileen said that the Aboriginal mothers looked after their children at Seven Mile Creek, at Six Mile Creek and also at Phillip Creek; she said that the children were not separated from their families.  It was her evidence that, at the depot at Seven Mile Creek and also at the depot at Six Mile Creek, the children lived with their parents in “windbreaks” and she claimed that the same arrangement existed at Phillip Creek – that the children were not separated from the adults.  In this regard she must be wrong, unless she intended her answer to be limited to those children who had not yet reached school age.  Her evidence on this subject is at variance with that of Mrs Cubillo and Bunny Napurrula.  I am satisfied that Eileen’s memory is at fault on this subject.  At a later stage of her evidence, she was shown some photos in cross-examination; she was able to identify separate buildings at Phillip Creek where the boys and the girls slept.  Nevertheless, she said that she and her husband slept in a camp with their children.  This contradiction in her evidence suggested that the change in the circumstances of the children when they moved to Phillip Creek did not have any impact on her so far as her own children were concerned.  But her children were born before the outbreak of the war; they would have been of school going age.  Previously, all the children were part of the larger Aboriginal group at the depots that were conducted by the Aborigines Inland Mission at Seven Mile Creek and at Six Mile Creek.  However, with the move to Phillip Creek, those who were of school going age were removed from the care of their families and placed in dormitories and sent to school.  It is true that the families were camped around the perimeter of the Settlement so that the children were able to see them daily, but there was, nevertheless, the start of an ultimate parting.

475               Eileen said that she could remember the day when Lorna and the other children were taken away in a truck.  She said that she and her people knew that the children were going to Darwin and that she knew, before Lorna went to Darwin, of the Retta Dixon Home as a place for schooling.  Eileen said that there were two white persons in the truck that took the children away, that she knew who they were but, so she said, “I can’t say their names”.  Later however, she said that the two men from the truck did not live at Phillip Creek and she had not seen them before.  In cross-examination, when answering questions about the children’s removal, she said that there were “two men, but maybe a lady too”.  After an initial hesitation, she firmed up saying that there were two men only.  At first, she said that the two white men got the boys from the boys’ room and then the girls from the girls’ room but then she said that only half-caste children were taken.  Yet she maintained that the boys were placed on the truck first and then the two white men got the girls.  I cannot accept Eileen’s evidence on this subject.  There was only one white man – Mr Les Penhall.  Although she said that she knew Mr Penhall as a welfare officer, she could only say that he might have been the tall man who drove the truck.  She said that she was too far away to see him.

476               Eileen said that her mother, Maisie, Lorna’s surrogate mother, was present with her when the children were removed and that they were both crying – she said that all the mothers and the children were crying.  This is contrary to Lorna’s evidence, who said Maisie was working at Banka Banka, but consistent with Kathleen’s evidence.  Eileen was quite clear in her evidence saying of herself and Maisie “we were both crying, mum and myself”.  Eileen then said that Maisie went to Banka Banka and, when asked why she left Phillip Creek, she answered “she was sorry”.  Once again the poignant use of the word “sorry” pointed to the deep emotional hurt that the parting with the children had caused.

477               Eileen said that she knew Miss Shankelton, but when shown a photograph of five women (one of whom had been identified by Mrs Cubillo as Miss Shankelton) Eileen was unable to recognise her.  It was Eileen’s evidence that she saw Miss Shankelton at Phillip Creek on ration days – Thursdays and Saturdays.  There is no other evidence that would support this statement and the likelihood of Miss Shankelton being a regular visitor to the Settlement is remote.  I believe that Eileen must have confused her with some other person.  It was Eileen’s recollection that Mr Thomas was the missionary at Phillip Creek at the time; she also recalled that a white woman was there too but she could not remember her name.  That woman could have been the wife of Mr Thomas, but that is only speculation as there was no evidence on the subject.  In re-examination, Eileen agreed that the woman whom she called Miss Shankelton lived at Phillip Creek and that “she might be a school teacher”.  Asked whether that woman had “lived there for a long time at Phillip Creek” she answered: “Yes”.  That evidence does not fit comfortably with her answers in cross-examination, but it does support my conclusion that she was confused.  According to Eileen, Miss Shankelton arrived at the Settlement before the children were taken away.  When she was asked how long before, she said at first “some days before” and then a “week before” but I am reluctant to rely on her time estimates.  Initially, Eileen said that the white people talked to the mothers saying that they were taking the children on a picnic.  She claimed that they did not ask for or obtain the mothers’ permission to take the children to Darwin.  It was then put to her that if she was too far away to recognise Mr Penhall, how was it that she could hear and understand what the white people had said to the mothers?  Eileen was not able to answer this question.  Later, Eileen said that Miss Shankelton only talked to the missionaries – that she did not talk to the Aboriginal people and that she left by motor car a day or so after the truck.  Again I feel that I cannot accept her evidence on that subject.

478               Eileen did not suggest that Miss Shankelton was present at Phillip Creek on the day that the children were removed.  She thought that the second (shorter) of the two white persons was Mr Harney; but in this she is plainly wrong.  Mr Harney was not present when the children were taken but, of course, Miss Shankelton was.  Eileen concluded her cross-examination by saying that she knew that the children had been taken to Retta Dixon Home at Darwin but that, notwithstanding that knowledge, “nobody went to Retta Dixon Home to see the children”.  How she acquired this knowledge was not tested.

479               I am not satisfied that Eileen understood the European system of counting.  After saying that the youngest of the children was still breast-feeding, she was asked how many babies were taken?  She replied “three, four or six”.  She said that they would have all been under twelve months old.  This is contrary to Mrs Cubillo’s evidence, who only referred to Gwen Rose as one who was so young.  Later, Eileen agreed with propositions from the cross-examiner that there could have been as many as ten children under twelve months and that there could have been forty children on the truck.  These answers did not play any part in my assessment of the reliability of Eileen’s evidence.  They merely proved that Eileen, who gave evidence through an interpreter, did not have normal numeracy skills.  No attempt was made to test her ability notwithstanding the concern that I expressed at the time.

480               I believed Eileen when she said that she was at the Settlement on the day that the children were taken away on a truck, but I find myself unable to accept many of the details of her evidence.  For example, she said that there were two white men in the truck:  I am satisfied that there was only one – Mr Penhall.  She claimed that she knew Mr Penhall and knew him at the time of the children’s removal from Phillip Creek, yet she did not recognise him as one of the men in the truck; she merely said he could have been one of the men even though later she agreed with a leading question from the cross-examiner that Mr Penhall was one of the two men.  It was Mr Penhall’s evidence that he had only visited the Settlement on one earlier occasion and there is no other evidence that would indicate that Eileen had ever had an opportunity to meet or observe Mr Penhall.  When asked in cross-examination whether she knew Mr Harney, her response was to say “Mr Harney short – he’s – he’s short man”.  That led to the following exchange:

“He’s the short man, yes.  But are you saying that it was Mr Harney who was there that day or you just think it might have been? --- Yeah.

THE INTERPRETER:     She’s saying that short fellow was Mr Harney.

MR MEAGHER:              Did you see him, did you? --- Yes.

Yes, all right.  So the two men you think were Mr Penhall and Mr Harney?

And that’s straight, is it? --- That’s right? Yes.”

481               Eileen said that the children wore their ordinary clothes but both Bunny and Annie Napurrula recalled that the children had new clothes.  Eileen said that the men got out of the truck and loaded the boys onto the truck without speaking to the missionary who, so she said, took no part in the exercise.  Eileen claimed that Mr Thomas was watching the two white men but that neither of them spoke to him.  She did not speak to Mr Thomas and she did not see any of the mothers speak to him.

482               Eileen acknowledged that her two children received an education, first at Phillip Creek and later at Tennant Creek.  When the children left for school at Tennant Creek, Eileen moved with them and they lived together in a Housing Commission house.  The move to Tennant Creek occurred after Lorna was taken away.

483               In 1946 Bunny Napurrula was living with her family at Phillip Creek where her mother worked as a cook, “cooking there for the aboriginal and half-caste kids”.  One of those “half-caste kids” was Mrs Cubillo, then known as Lorna Napanangka.  Bunny also said that there were three dormitories at Phillip Creek.  One was for the Aboriginal girls, another was for the Aboriginal boys and a third, the one in the centre, was for the part Aboriginal children of both genders.  It was her evidence that there were eleven children in this last mentioned dormitory – five boys and six girls.

484               Bunny Napurrula was an impressive witness.  Although she was quietly spoken, and very difficult to understand at times, her evidence was helpful and I find myself able to accept it.  She learnt English in school and has completed an interpreter’s course.  She has worked with linguists and anthropologists over the last twenty years but she still has difficulties with the English language and it was necessary at times to rely on an interpreter.  Bunny said that she has spoken for her country in Land Claim Hearings and that she still does women’s business for her country.

485               Bunny first lived and went to school at the depot at Six Mile Creek.  She then moved with her family to Banka Banka Station.  From there she went to the Phillip Creek Settlement where she continued her schooling and where her mother obtained work as a cook.  She recalled that Mr and Mrs Long were the missionaries at the Six Mile Depot; when they left they were replaced by Mr and Mrs Thomas.  At some later stage, Mr and Mrs Thomas transferred to the Phillip Creek Settlement, probably when the ration depot at Six Mile Creek was closed down.

486               When Bunny moved to Phillip Creek with her family, Lorna was already there.  Bunny’s sister, Annie, was a house mother at Phillip Creek and was in charge of the part Aboriginal boys; Dora Dawson was the house mother in charge of the part Aboriginal girls.  Bunny recalled the time when Lorna left Phillip Creek.  She said that she (Bunny) was then aged sixteen.  If, as other evidence establishes, the children were removed in 1947, that would mean that Bunny is now aged 68 years.  Her sister Annie is the elder of the two.  Bunny knew Miss Shankelton and Mr Penhall.  She said that they were the only white people on the truck that took the children.  She knew Mr Penhall as a patrol officer who had visited the Settlement but Miss Shankelton had only arrived at the Settlement on the day before the children left on the truck.  She was pressed on that point in cross-examination but maintained that Miss Shankelton arrived in a truck after lunch on the day before the children were taken away.  Her evidence was simple and to the point:

“She was there, she came in on truck, stayed there one night with those kids, let all the mothers stay there and in the morning they just packed up and left and we could see that truck goes; we all were crying for them.”

487               The night before the children left, Bunny and some other women helped her mother prepare food.  Somehow (the circumstances are not clear) she knew that the children were going away the next day and that food had to be prepared for them.  However, she did not know why they were going or where they were going or for how long they would be gone.  I infer from the way in which she gave her evidence that she knew the night before that the children were not going on a picnic but were going away for good.

488               Bunny also said that the house mothers and the mothers and aunties of the part Aboriginal children had been making clothes for the children.  Annie could not remember this, however.  She could only remember that new clothes appeared for the children on the day that they left on the truck but she did not know where they came from.  If Bunny’s memory is accurate, it meant that someone in the Settlement had advance knowledge that the part Aboriginal children were to be taken away and that they would need good (or better) clothes for that reason.  That has appeal as an inference to be drawn; the probability is, and I find that, the Superintendent, Mr Thomas received some advance notice.  On the other hand, the making of the clothes does not help in determining what the house mothers and the mothers of the part Aboriginal children would have known.  They might have been instructed to prepare new clothes without being told the reason.  With the deaths of Mr and Mrs Thomas and Mr Colley, the school teacher, there is now no way of knowing what information had been given in advance to the missionaries at Phillip Creek.

489               Bunny did not know what Miss Shankelton or Mr Penhall might have told the mothers.  As I understood her evidence, she did not actually see the children loaded onto the truck for she said:

“We went and lock ourself inside the house and we wept for those kids with our whole tribe of family, we’re like sorry for those kids.”

490               She repeated this later, saying:

“I went and locked myself in the kitchen with my mum and we wept.”

She said that she could hear the children and the mothers “howling”.  She did not go back to the dormitory.  I take that conduct to be her reaction, in sorrow, for the loss of the children.  In cross-examination she said that her mother told her “those kids going to leave us, got to go, they make us sorry”.  At a later stage in her cross-examination, she added that when the children left on the truck “We didn’t stay in the settlement, we went away too”.  Annie reacted in much the same way, saying that she locked herself away.

491               When she was asked what were the Aboriginal people doing when the truck left she answered:

“All camp were howling for them.”

492               Under objection, I permitted Bunny to state in her evidence that the departure of the children caused such grief that many of her people moved away from Phillip Creek and did not return for quite some time.  She explained that Aboriginal people frequently moved camp following the death of a person as the place becomes a site of sadness.  Thus the departure of the children was, likewise, regarded as an event of great sadness.  Dora Dawson’s child was one of the children who were taken that day.  Both Bunny and Annie said that Dora Dawson left Phillip Creek and never returned.

493               Bunny was asked in cross-examination whether any of the children who went away on the truck came back.  In the first instance, she said that she knew of two – Nelly Weddell and her cousin Ruth.  When asked when it was that Nelly returned, she answered “couple of years back”.  I take that to mean a couple of years prior to her giving evidence – not a couple of years after Nelly was taken away.  Bunny said that Ruth came back when she was a “big girl”.  In neither case was it disclosed in cross-examination whether these returns were of long or short duration but in re-examination Bunny said that Nelly returned to live in Tennant Creek; she also added that Joyce Schroeder, another one of the Phillip Creek children, had come back to live.  In addition, Bunny named Marjorie, Jimmy Anderson and Audrey as children who left on the truck but who had returned to visit.  Annie knew that Mrs Cubillo had returned to Tennant Creek for a visit; she said that she next saw Lorna “after 18 years” when “she came back here to visit us”.  At that time “she was grown up with kids”.

494               According to Bunny, all eleven children from the half-castes’ dormitory were placed on the truck, along with other children from other parts of the camp.  She said that she could not give their ages because, at that time of her life, she did not understand the concept of age.  However, I gathered from her evidence that there was a variety of ages.

495               Both Bunny and her elder sister, Annie Napurrula, said in evidence that the mothers  of the part Aboriginal children and the Aboriginal men treated the part Aboriginal children in the same way as Aboriginal children were treated; the children all played together and they were loved as a whole family.  Annie, who gave her evidence in English, but with an interpreter assisting, said that the part Aboriginal children were not treated any differently from the Aboriginal children.  At that point, the interpreter interjected to say:

“No, no, none of them hated those half-caste kids; mothers and stepfathers, they looked after them just like their own.”

I took that to be confirmation of what Annie had already said.

496               I accept the evidence of Annie as her personal experience; I have no cause to doubt her sincerity on such an important subject.  However, it can only be treated as evidence of her personal experience.  It cannot be elevated to a finding that all part Aboriginal children were accepted in the same manner.  Regrettably, the evidence of other witnesses told of a different story of rejection and, at times, death.

497               Annie Napurrula lived in the dormitory at Phillip Creek with the part Aboriginal children as a house mother.  She agreed that the families of those children also lived at the Settlement, but separately from them.  The mothers were, however, allowed to visit the children.  It was her evidence that the school going children were separated from their families at both Six Mile Creek and Phillip Creek.  She also said of Six Mile Creek:

“Aboriginal kids on – on their own, the half-caste kids on their own.”

At Phillip Creek, the teacher was Mr Colley and school hours were 8.00 am to 3.00 pm.  The situation must have been very primitive for Annie said that although Mr Colley had slides, “all writing was in the dirt”.

498               Annie remembered when Lorna was taken away from Phillip Creek.  She was also able to name Miss Shankelton and Mr Penhall as the white people who took her.  Asked whether she had ever seen Miss Shankelton before, Annie’s answer was not to the point, but it was highly significant.  She said:

“Yeah.  Miss Shankelton will say to me – talk to me – take away these kids better home, better school, better food and Miss Shankelton say that.”

Accepting, as I do, the truthfulness of that answer, it pointed to Miss Shankelton having a personal belief that what she was doing would be in the best interests of the children.  It was some indication that Miss Shankelton conveyed a subjective belief that the intended removal of the children was premised on what she considered would be in their best interests.  People today may condemn Miss Shankelton for her views and for her actions but the evidence of the Commonwealth’s witnesses challenged the allegation in the pleadings that the Commonwealth had acted with a “conscious and contumelious disregard” for the welfare of the children and with “a wanton cruel and reckless indifference” to their welfare.

499               Annie claimed that she knew that the children were going to Darwin and she also claimed that she saw both Miss Shankelton and Mr Penhall talking to the mothers.  She said that she heard Miss Shankelton and Mr Penhall say to the mothers that they were taking the children to Darwin but she did not hear what the mothers said in reply.  Annie said that she was not present when the children got on the truck; she had locked herself away in her room.  She said, however, that “all the mothers were there looking at the truck” and “they was crying, sorry for the kids”.

500               Annie, who has five children, said that her three daughters went to a Uniting Church school in Darwin.  The girls boarded at the school while Annie lived in a Housing Commission house at Tennant Creek.  At that stage, she was working as a cleaner in the local hospital.  In re-examination she was asked whether it was her decision to send her children away to school.  Whether the answer was expected or not, it was – “Yes!  I sent them away myself”.  Once more, the contemporary attitude of the Aboriginal person to western education surfaced.  Annie is a person who is deeply steeped in her Aboriginal culture and it would be an affront to her to suggest that she should abandon it for western civilisation.  But that did not prevent her from recognising the importance of a western education; she, and others like her, have shown their determination to have their children introduced to western culture, even if, as in Annie’s case, it meant that she and her daughters had to suffer the loneliness of separation while the girls were at boarding school.

Who Removed the Children from Phillip Creek

501               Ms Hollingworth, during the course of her final address, submitted that there was insufficient evidence to enable the Court to determine, on the balance of probabilities, whether the move from Phillip Creek to the Retta Dixon Home was controlled by the Director of Native Affairs (who requested Miss Shankelton’s assistance by accompanying the children), or by the Aborigines Inland Mission (who requested the assistance of the Native Affairs Branch by transporting the children).  I acknowledge that the evidence was sparse but a clue to the relationship between the Native Affairs Branch and the Aborigines Inland Mission can be found in Appendix “C” to the “Report on the Administration of The Northern Territory for year 1945-46”.  Appendix “C” was sub-titled “Report on Native Affairs 1945‑46” and at 30 it said of the Aborigines Inland Mission:

“Although this body has no establishment of its own, it has provided staff who have controlled departmental settlements.  Their work has been of inestimable assistance to this Branch, particularly during the war years when it was impossible for us to obtain other suitable staff.  The depot at Tennant Creek (later Phillip Creek) has always been staffed by this Mission.”

I have no doubt that the reference to the “depot at Tennant Creek” would have meant, first, the depot at Seven Mile Creek and later, the depot at Six Mile Creek.  The entry in the Administrator’s report established that the Administrator regarded the Phillip Creek Settlement as a Departmental Settlement and I find accordingly.  His statement that the Aborigines Inland Mission did not have an establishment of its own was accurate at the time but subsequently became inaccurate when Miss Shankelton was instrumental in having the Mission establish the Retta Dixon Home on the Bagot Reserve.

502               Who decided that the children should be moved to Retta Dixon and why was such a decision made?  The Native Affairs Branch could have made a decision that the children would be moved but it could not have forced the Retta Dixon Home to receive the children.  The Aborigines Inland Mission might have decided that it would have been better for the children to be moved to its new Home in Darwin but could it have implemented any such decision without the approval of the authorities?  By what right might a private organisation remove part Aboriginal children from their families?  As both the Director of Native Affairs and the Aborigines Inland Mission had knowledge of the presence of the part Aboriginal children at Phillip Creek, either one of them might have made contact with the other to initiate a joint enterprise which concluded with the removal of the children.  The utilisation of Mr Penhall is sufficient in my opinion, without more, to substantiate a finding that the authorities did approve of the move, but the details of any such approval are now wholly lacking.  The probabilities are that the Aborigines Inland Mission, having recently opened the Retta Dixon Home for part Aboriginal children, made a decision to move the part Aboriginal children, who it regarded as being in its care at Phillip Creek, from that Settlement to the new Home.  After all, its missionaries were “running” the Phillip Creek Settlement and they were also “running” the Retta Dixon Home; it could be that it was a decision of the missionaries that it would be “better” for the part Aboriginal children to move them to the Retta Dixon Home. In that scenario, it might be argued that the Native Affairs Branch would have been little more than an interested arm of Government who gave its approval to the decision and assisted in its implementation by making Mr Penhall and the truck available.  An additional factor that favours the conclusion that the Aborigines Inland Mission was the dominant force in the move was the fact that, in July 1947, when the part Aboriginal children were removed from Phillip Creek, the Retta Dixon Home had not yet received official recognition from the authorities.  It was not declared to be an Aboriginal institution within the 1918 Ordinance until the following December.  The Retta Dixon Home had started in 1946 as a matter of necessity so that there would be a home for the part Aboriginal children who had returned to Darwin after the war.  That was the first and only Home that was being conducted by the Aborigines Inland Mission.  Perhaps it saw the establishment of the Retta Dixon Home as the logical place to care for those part Aboriginal children who were then living at Phillip Creek.

503               In making her submissions on this subject, Ms Hollingworth advanced a third alternative to the effect that some or all of the parents might have initiated the children’s removal by asking the Aborigines Inland Mission or the Native Affairs Branch to assist them in getting a better education for the children.  I do not accept that as a realistic possibility having regard to the evidence that has been adduced during the course of the trial.  The distressing scenes that accompanied the children’s departure from Phillip Creek transcended the sadness that would have accompanied a parting between mother and child that was initiated by the mother.  Whilst there is evidence from some of the applicants’ witnesses, such as Eileen Napanangka and Annie Napurrula, to the effect that Miss Shankelton spoke to the mothers of the children, that evidence is not sufficient, in my opinion, to warrant a finding that, as the Commonwealth would have it, the parents of the Phillip Creek children consented to their children going to Darwin for a better education and a better standard of living.  Be that as it may, the question that goes to the heart of this trial, is not the issue of the mothers’ consents:  important though that is, the question that must be asked is dictated by the legislation.  Section 6 of the Aboriginals Ordinance empowered the Director to undertake “the care, custody or control” of Lorna Napanangka “if, in his opinion it [was] necessary or desirable to so do”.  If, therefore, it was the Director who took Lorna away – with or without the consent of her family – has it been established by Mrs Cubillo that, in taking her, he did not do so under the umbrella of s 6.  There is no evidence upon which this Court could rely to make a finding that the Phillip Creek children were the subjects of an exercise of power by the Director of Native Affairs that exceeded the boundaries of ss 6 or 16 of the Aboriginals Ordinance.  Conversely, there is no evidence that the Director of Native Affairs acted pursuant to those statutory provisions.

504               It is necessary to ask whether, by the act of removing Lorna from Phillip Creek, the Director undertook her “care, custody or control” or whether he merely stood by, allowing the Aborigines Inland Mission to undertake her care, custody or control.  If Mrs Cubillo has any cause of action against the Commonwealth, it can only be because the Director either did not form the opinion as required by the Ordinance or because any opinion that he did form was not necessary or desirable in her interests.  If the Director formed an appropriate opinion as is referred to in s 6 of the 1918 Ordinance, the decision of the High Court in Kruger has established that the Director’s conduct in taking Lorna into his care, custody or control cannot be constitutionally challenged.

505               The onus rested on Mrs Cubillo to establish that the Director did not act in the manner permitted by s 6; she must satisfy the Court that the Director either did not form any opinion or that the opinion that he did form was either so unreasonable that no reasonable person could have formed it or, at least, that it could not be said that he believed that her removal was necessary or desirable in her interests.  Mr Moy is dead; his oral testimony is not available; but further, there is no documentary evidence that points to the formulation of any opinion, decision or resolution relating to the removal of Lorna from Phillip Creek.  The subject of “time limits” and “prejudice” will be discussed later in these reasons but it is timely to note, at this stage, the prejudice that the Commonwealth would suffer if, contrary to the view that I have expressed, it carried the onus of satisfying the Court that the Director had formed an opinion that it was necessary or desirable in the interests of Lorna to take her into his care, custody or control.  The extreme delay in the institution of these proceedings has meant that the Commonwealth has been denied the benefit of Mr Moy’s oral evidence and, if there was any written material, access to whatever written material may have been on file in the Native Affairs Branch.

506               Counsel for Mrs Cubillo submitted that it was not open to the Commonwealth to contend that the removal of Lorna Nelson was carried out after a consideration of her individual circumstances.  But that submission was tantamount to saying that there was an onus on the Commonwealth to prove that it had made an assessment of Lorna’s personal circumstances:  that is not the test.  The onus was on Mrs Cubillo to establish to the satisfaction of the Court:

·                 that the Director of Native Affairs by his agent, Mr Les Penhall, was the person or one of the persons who removed her;

·                 that the Commonwealth was vicariously responsible for the conduct of the Director and Mr Penhall; and

·                 that in the process of removing her, the Director failed to form an opinion that it was necessary or desirable in Lorna’s interests to undertake her care.

If those tasks are now regarded as apparently onerous tasks for Mrs Cubillo, it is to be remembered that it is because she is only now complaining about events that occurred to her in the period 1947 to 1956.  It may not have been her fault that there has been such an extreme delay:  she may not have known of her rights.  But, at the least from the time when her guardianship ceased, it could not be said that her delay was caused by the fault of the Director of Native Affairs or the Commonwealth.

507               The Commonwealth, during the course of its final submissions went beyond the personal circumstances of Lorna Nelson at the time of her removal from Phillip Creek; it broached the larger subject of the total reaction of the Aboriginal community to the departure of all the children.  It submitted that the crying and the wailing (which it accepted did occur) was only indicative of the unhappiness that would have been shown when children were leaving for a long time; the submission used the analogy of children leaving for boarding school.  The Commonwealth maintained that the reaction of the mothers did not indicate lack of consent.  I am not prepared to accept that submission.  In the first place, my function is limited to the personal circumstances of Lorna Nelson; her circumstances may have been, but were not necessarily, identical to the personal circumstances of the other children.  In the second place, although I fall short of making a formal finding on the subject, my reaction to the Commonwealth submission is to say that the behaviour of the mothers, the evidence of Mrs Cubillo, the evidence of the three Tennant Creek women and the limited time available to Miss Shankelton to explain what would happen to the children, suggested that some, if not all, of the children may well have been taken without their mothers’ consent.

508               Mr Penhall’s involvement in the removal of the children from Phillip Creek cannot be dismissed as minimal; it cannot be said of him that he was a mere driver for Miss Shankelton when she and her mission removed the children.  That much became apparent when it was recognised that Mr Penhall did not arrive at Phillip Creek by chance; he was not unexpectedly co-opted by Miss Shankelton as a result of a fortuitous arrival at the Settlement.  He was stationed at Yuendumu, performing his functions at that location as an officer of the Native Affairs Branch.  That was the context in which his movements were to be evaluated.  Someone in authority in the Native Affairs Branch sent Mr Fred Gubbins, another employee of the Native Affairs Branch, to Yuendumu to bring Mr Penhall to Alice Springs so that Mr Penhall could get a truck and drive it over 500 kilometres from Alice Springs through Tennant Creek to Phillip Creek.  Someone in authority in the Native Affairs Branch instructed Mr Penhall to purchase and supply rations for a known number of people.  In other words, the totality of the exercise indicated a measure of involvement by the Native Affairs Branch sufficient to find, as I do, that the Native Affairs Branch participated in the decision to remove and in the removal of the children from Phillip Creek.  There is an invitation to infer that the Director of Native Affairs acted under s 6 of the 1918 Ordinance; a contrary inference would point to illegal activity on the part of the Director.  However, the evidence is too lacking for concrete findings to be made with respect to the reasons behind the Director’s decision to participate in the removal.

509               Mrs Cubillo chose to call only two of the Phillip Creek children who are still alive, namely Jimmy Anderson and Willy Lane.  Mr Lane remembered virtually nothing about the removal and Mr Anderson’s evidence on most matters was vague and confused.  Mrs Cubillo acknowledged in her evidence that the following Phillip Creek children are still alive and living in the places indicated:  Norman Anderson (Darwin), Nell Waddell (Tennant Creek), Ann Lane (Tennant Creek), Joyce Schroeder (Tennant Creek), Marjorie Winphil (Darwin), Gwen Rose (NSW), Audrey Anderson (Victoria) and Vera Doran (Western Australia).  Vera Doran was said to be a chronic asthmatic with a heart condition.  Should that be the case, it would be understandable that she might not be medically fit to give evidence.  However, no attempt was made to establish that fact either by evidence or by agreement with the Commonwealth.  In addition to them, there was Peter Hansen, the boy who allegedly jumped off the truck before it left Phillip Creek.  Mr Penhall gave evidence, which I accept, that he recently met Peter Hansen and his wife at a Shopping Centre in Palmerston (a Darwin suburb).  Apart from Mrs Doran, no explanation was given for the failure to call Peter Hansen or any of the other Phillip Creek children (particularly those living in Darwin or Tennant Creek).

510               The question that remained was whether Mrs Cubillo’s failure to call some or all of those persons as witnesses in the trial affected the findings that were open to the Court.  Important though the larger social question may be to the Aboriginal community, it was not the task of this Court to inquire whether the parents or guardians of the other children had consented to their removal.  The Court’s responsibility was to inquire into the circumstances of Lorna Nelson.  Who was responsible for her removal?  Was her removal effected with the consent of the person or persons who were then responsible for her?  The Commonwealth contended that there could not have been any doubt in the minds of the legal advisers for the applicants:  they would have known that the Commonwealth was raising as an issue the question whether the admission to the Retta Dixon Home was voluntary or forced.  The Commonwealth also submitted that the applicants’ legal advisers knew that the Commonwealth intended to argue that the emotional scenes at Phillip Creek were only expressions of regret and understandable pangs of emotion at the young children going off to what they, the adult women, believed was a better place for them.  The applicants submitted, on the other hand, that it would have been superfluous to their needs in proving their case to call each and every person who was taken away from Phillip Creek; they argued that a party is not required to duplicate evidence.  I agree; the evidence of Jimmy Anderson, Willy Lane and the three Aboriginal women was enough.  There is no reason to suppose that the surviving children could have made a material contribution to the evidence that had been tendered.  The circumstances under which the part Aboriginal children were removed from Phillip Creek and the family circumstances of Lorna Nelson were two very important issues in this trial.  However, the potential witnesses would have been very young children in 1947; Mrs Cubillo was, at eight years of age, one of the oldest children.  It is doubtful whether those missing witnesses would have been able to shed more light on these subjects.  I decline to draw any inference that has a base in whole or in part, on the failure of Mrs Cubillo to call those persons as witnesses.

511               The conclusion that I have reached is that Lorna Nelson Napanangka was removed from the Phillip Creek Native Settlement and was taken to the Retta Dixon Home as part of a joint exercise that involved both the Aborigines Inland Mission and the Native Affairs Branch.  However, I further hold that Mrs Cubillo has failed to establish that she was, at that time, in the care of an adult Aboriginal person (such as Maisie) whose consent to her removal was not obtained.  I also find that Mrs Cubillo failed to prove that the Director did not form the opinion that was referred to in s 6 of the 1918 Ordinance.

The Retta Dixon Home

512               The Aborigines Inland Mission of Australia is an interdenominational faith mission that was founded in about 1905 by Retta Long (nee Dixon) and her husband, Leonard Long; it is based in Sydney and, during the 1940s and 1950s, it had missionaries working in a variety of places in the Northern Territory and elsewhere throughout Australia.  It was of significance to the facts of Mrs Cubillo’s case that the mission had missionaries working at the depots for Aboriginals at Seven Mile Creek, Six Mile Creek and Phillip Creek during the 1940s and the 1950s.  Although the evidence did not support detailed findings about the role that these depots played in the lives of the Aboriginal community, it was clear that they were used to distribute rations.  However, did that mean that the Aboriginals, or some of them, therefore congregated at the depots of their own accord so that they could benefit from the distribution of rations?  Or did it mean that some form of compulsion, coercion or persuasion was used by people in authority to gather the Aboriginals into a convenient central location?  And what about the missionaries?  What part did they play?  In particular, did they exercise any coercive or persuasive powers over the Aboriginals or, at least, the part Aboriginal children?  None of those questions can be answered with confidence from the evidence that was presented at the trial.

513               Miss Shankelton arrived in Darwin in 1939 and worked in and around Darwin until March 1942, when she escorted a large number of part Aboriginal children, who were being evacuated from Darwin, to “Saints Farmhouse”, a property near Balaklava in South Australia.  One of the part Aboriginal children who was evacuated to “Saints” was Mrs Marjorie Harris, a witness in the trial for the Commonwealth.  Until the end of the war, the Aborigines Inland Mission operated a hostel at “Saints” for the young evacuees who attended local schools.  The missionaries who worked at “Saints” with Miss Shankelton included Ms Dinham and Ms Spohn, both of whom subsequently worked at the Retta Dixon Home after the war.  Miss Shankelton returned to Darwin with the evacuees in May 1946, but there was no suitable institution in the Darwin area to house the children.  Miss Shankelton was, as a result, permitted by the Northern Territory Administration to utilise a number of buildings on the Bagot Aboriginal Reserve which was situated about eight kilometres from the centre of Darwin.  Shortly thereafter, the Aborigines Inland Mission established its Home in an unoccupied section of the Reserve.  The Home was initially called the Aborigines Inland Mission Home, Darwin, but by April 1948 it had become known as the Retta Dixon Home. 

514               On 17 December 1947, the Administrator of the Northern Territory, Mr Driver, declared the Retta Dixon Home an Aboriginal institution under the Aboriginals Ordinance.  On the same day, Miss Amelia Shankelton was appointed as the founding Superintendent of the Home.  She remained the Superintendent during the whole of the period in which Lorna Nelson resided in the Home.  During Mrs Cubillo’s time at the Retta Dixon Home, the day to day management of the Home was the responsibility of Miss Shankelton, the Superintendent.  As previously noted, the children in the Home were under her control and supervision by virtue of the provisions of subs 13(6) of the Aboriginals Ordinance.

515               In her day to day management of the Retta Dixon Home, Miss Shankelton reported to the Director of the Aborigines Inland Mission.  Prior to 1953, that had been Mrs Retta Long.  After 1953, it was her son, the Reverend Egerton Charles Long; he gave evidence in this case on behalf of the Commonwealth.  Mr Long, who is a retired Baptist Pastor, said that he was eighty-two years of age at the time of giving his evidence in this matter.  He said that his mother and his late father, Leonard, had established the Aborigines Inland Mission in 1905 or 1906 at about the time of their marriage.  His father died in 1928 and his mother died in 1956.  He and his wife joined the mission in late 1945.  William Arnold (“Arnold”) Long was his elder brother and Arnold’s wife was Dorothy.  Arnold began his work as a missionary with the Aborigines Inland Mission in the early 1930s and continued until the late 1940s.  Arnold and Dorothy then established a separate missionary group in Alice Springs where they remained until their deaths.  Mr Long remained as Director until about December 1972.  Although he was the sole Director, it was his practice to consult with the mission’s two councils - the Federal Advisory Council and the Field Council.  In the late 1940s and the early 1950s, Mr Long estimated that there would have been about forty-five to fifty missionaries on the staff of the Aborigines Inland Mission; they conducted missions on the Murray River, throughout New South Wales and Queensland, and in the Northern Territory at Darwin, Katherine, Newcastle Waters and Borroloola.  The Retta Dixon Home was unique in that it was the only Hostel or Home that was being conducted by the mission.

516               Mr Long agreed that, in the early 1950s, discussions were taking place for the relocation of the Retta Dixon Home.  He agreed that the reasons behind that move were threefold:  first, the existing facilities were inadequate; secondly the buildings were needed for the Bagot Compound; and thirdly, it was generally accepted that the locality of the Retta Dixon Home within the Bagot Reserve was unsuitable because of the proximity of the children to the adult Aboriginal people in the compound.  Mr Milliken, for example, said that there was great concern about the location of the Retta Dixon Home; the accommodation and playing areas for the children were limited and the proximity of young men in the Bagot Reserve and the RAAF base were matters that Mr Milliken identified as matters of concern.  The premises of Retta Dixon Home were eventually relocated in 1961, long after Lorna Nelson left the Home, when the mission leased about ten acres of land on Bagot Road near the airport.  In its original format, the Retta Dixon Home provided the children with dormitory accommodation. However, it moved into cottage-type accommodation at the new site which was about one mile from the original site.  The Commonwealth Government made a grant to the mission of £90,000 which was used to build eight cottages and other support buildings.  Sir Paul Hasluck, as Minister for the Territories, opened the buildings in July 1961 and the Home continued until Cyclone Tracy destroyed it on Christmas Day 1974.  The Home staggered on in a very modified form until it was ultimately closed in 1982.

517               Asked whether the missionaries who worked at Retta Dixon were paid a salary, the Reverend Long replied:

“There was an allowance available to them from the Welfare Department, however, a number of the workers, or some of the workers anyway, didn’t accept that because they felt that they had been called as missionaries and were looking to God to supply their needs …”

518               Mr Long said that most of the buildings at the Retta Dixon Home were Sydney Williams huts that had been obtained from the army.  He said that they were just corrugated iron huts with shutters that opened out to give cross-ventilation but, so he said, buildings in Darwin in the late 1940s and the early 1950s were much the same; he was of the opinion that Darwin did not “begin to pick up for quite some time after the War”.  He said that there was no air conditioning at the Retta Dixon Home nor in any of the places in Darwin that he knew of.  It was his opinion that “overall accommodation was not of a high standard anywhere in Darwin at that particular period”.

519               He spoke highly of Miss Shankelton, saying that she operated:

“very efficiently, very lovingly, very caringly.  She simply gave herself to the task.  I really hardly know when she slept.  It seemed to me she was on duty eighteen and twenty hours a day and she not only cared for the office end, but she cared for the total administration and the care of the children and she just gave herself to the whole task.”

Asked whether he had any reservations about the way in which Miss Shankelton performed her work he replied:

“I don’t think I could have any reservations.  I think only a remarkable woman entirely devoted to the work and to God could possibly have done what she did and she was honoured with an MBE from the Queen for her work, which I think speaks for itself too.”

520               Mr Long said that, after his appointment as the Director of the Aborigines Inland Mission, he visited Darwin about once per year.  The purpose of his visits, which lasted up to two weeks, was to talk with the Superintendent and to make his inspections.  Apart from his visits, he said that Miss Shankelton kept him informed about the affairs of the Home through letters, phone calls and telegrams.  Miss Shankelton was also required to report to the Mission’s councils.

521               Mr Long said that the process for appointment as a missionary with the Aborigines Inland Mission involved applying, with references and a medical certificate, to the Mission, being interviewed by the Federal Council, and, if accepted, serving a probationary period under a senior missionary until ready to take up an appointment.  In deciding which missionaries would staff Retta Dixon, the Field Council had regard to the needs of the Home and the type of missionaries who might fit in there.  Mr Long explained that it was difficult to fill places at the Retta Dixon Home because of an overall shortage of workers within the Mission.

522               The Federal Advisory Council of the Aborigines Inland Mission took care of business matters such as applications for employment from workers.  The Council comprised business people, pastors and friends of the mission.  The Mission’s Field Council dealt with matters in the field such as the placement and care of missionaries and their establishment.  As I have already said, I find that at all times, the selection and appointment of staff at the Retta Dixon Home was the sole responsibility of the mission.  All of the former missionaries who gave evidence came to work at the Retta Dixon Home through contact with the Aborigines Inland Mission and without any Government involvement in their recruitment.  The Director of Native Affairs had no power of appointment or termination of appointment of staff; he had only the power to order people off the Bagot Reserve, and thereby off the premises of the Retta Dixon Home.

523               Throughout the time that Mrs Cubillo was at the Retta Dixon Home, it served several purposes.  Unlike St Mary’s Hostel in Alice Springs, the Retta Dixon Home provided accommodation not only for half-caste children of school age, but also for single half-caste mothers and their babies and young half-caste girls who were working in the town.  It also took in half-caste babies who had been abandoned or placed there for care.  Mr Gordon Sweeney, in his Review Report on the Retta Dixon Home dated 27 September 1951 said of it:

“In the Retta Dixon Home we see a part-aboriginal community growing up in the midst of a white community; the children attend the same school as the white children and receive hospitalisation in the general hospital with the white patients.

The service rendered by the Home for the part-aboriginal women is the only one of its kind in Darwin and is helping to meet a great need.  The control of this section of the work is good.

The Institution is making satisfactory progress in preparation of the inmates for life in our community, and in its work for part-aboriginal women, is meeting an essential need in Darwin.”

524               When Mr Long was asked to explain the origins of the children who lived at the Retta Dixon Home he answered in this manner:

“Well, a variety of ways, I guess.  The first group came out of – well, came originally from Darwin were evacuated to South Australia during World War II and then returned to Darwin in 1946 and there were fifty-one, I think, in that group, but that did include some women as well.  And that was the beginning of the home and then other children were brought to the home in various ways.  A lot of parents brought their children to the home when they themselves were going out to work on a cattle station, for example, and they wanted their children to be educated in Darwin.  Then, thirdly, there were the children that were put in the home by the Welfare Department, brought there in accordance with their particular policy of giving opportunity to part-coloured children to receive education and so on.”

He said he did not have “much specific knowledge” about ongoing contact between parents and children, but he added that he did recall “some children being allowed home during school holidays”.  He added that he could recall parents coming to the Home to see their children.  However, as he added, he was in Sydney and his only information about the Home was based on his visits together with the information that was passed through to him, mostly from Miss Shankelton.  He had no personal knowledge of the circumstances in which the group of children from Phillip Creek came to the Retta Dixon Home in July 1947.

525               When the Retta Dixon Home was established, the Northern Territory Administration provided the buildings and furnishings which were, in the main, surplus army stores.  The Administration also supplied rations and transportation.  Initially, and for a period of years, the Government provided financial assistance in the form of an annual grant of money plus all the food that was needed for the Home.  The Aborigines Inland Mission raised the rest of the funds that were needed for the operation of the institution.  In 1951 the system of funding Aboriginal institutions in the Northern Territory was changed to an annual budget.  Under the new system, an institution would receive an annual operational grant and an annual capital grant based on budget estimates that were submitted by it and approved by the Administration.  By 1954 the amount of the subsidy had been formalised on a ninety:ten basis.  The operational grant from the Administration was to cover 90 percent of the operating losses for items such as salaries, food, clothing, health, hygiene, social activities and the like.  The capital grant was to cover 90 percent of the cost of any capital equipment that was purchased.

526               Additional funds were received by Retta Dixon and other institutions through child endowment payments which were collected by the Home on the authority of the parents.  In addition, some parents were able to pay fees and those of its inmates who were working were able to make contributions to the institution.  Finally, funds were generated internally by the Aborigines Inland Mission from time to time.

527               When the Phillip Creek children arrived at the Retta Dixon Home, there were forty-eight children and eight adult women in residence; those numbers peaked in 1954 to one hundred and ten children and six adult women and in 1956 when Lorna left Retta Dixon, there were ninety-eight children and five adult women.  Many of the children who lived in the Retta Dixon Home were there because it was the wish of their families.  Mrs Cubillo knew this and recognised it during her evidence.  Children who were known to her, were named and she acknowledged that they were visited by their mothers.

528               The report on the Administration of the Northern Territory for 1945-1946 referred to the mission that had been established by Miss Shankelton and the newly established St Mary’s Hostel at Alice Springs.  In relation to these two new institutions, Mr Carrington, the then Acting Director of Native Affairs, observed that:

“The experiment conducted by the Aborigines Inland Mission in Darwin and the Church of England Board of Missions in Alice Springs, whereby children are cared for in the institution but receive their education at the public school along with European children and half-caste children not under the control of the Branch, will be watched with interest.  This innovation eliminates the institution school and is calculated to inculcate confidence in the children by their association with European children.”

529               Mr Carrington’s report suggested that the experiment was designed with the interests and welfare of the children in mind.  Support for this proposition can be found in many of the papers.  For example the Administrator of the day, Mr Driver, wrote a letter dated 16 September 1947 in optimistic terms to the Secretary, Department of Interior, saying of the Retta Dixon Home:

“The aim of the Aborigines Inland Mission at Darwin is to care for their half-caste wards and train them to become worthy and responsible citizens.  The Hostel is intended to be a congenial home for young women employed in Darwin where they will receive advice and guidance.”

530               On 6 July 1949, Mr Driver wrote the Department of the Interior as a consequence of inquiries that had been made of the Department about claimed “discriminatory restrictions on Aborigines” by “the United Nations Association of Australia”.  The indignation of the Administrator came through in that part of his letter where he dealt with the removal of part Aboriginal children.  He wrote:

“Critics choose to disregard that the illegitimate child in a native camp is the result of an illegal liaison between a despicable white man and a native woman.  The presence of such children is decried, though a benevolent Government, acting entirely in the interest of the individual, is criticised severely when the child is removed for upbringing and education.”

531               It is clear that Mr Driver recognised that the Government’s policy, which he regarded as “benevolent” and “in the interest of the individual”, was not universally accepted.  What is more, for the Administrator of the Northern Territory to give recognition to dissent, also pointed to the dissent being of significance; the outcries of a few people only would hardly have warranted the reaction that appeared in Mr Driver’s letter.

532               Three years later, on 30 August 1950, Mr Driver wrote the Director, Northern Territory Affairs, Department of the Interior, about Retta Dixon, saying that the Home aimed at:

“providing a Christian Home for coloured children where they are loved, educated and trained to take their place in the community as good citizens.”

533               On 17 August 1953, patrol officer Ryan submitted a detailed report on the activities of the Retta Dixon Home.  For the most part, the report was critical of the Home’s functions and of its future.  However, Mr Ryan was, with some qualifications, happy with the staff.  He listed each of them with a brief note about their respective roles and then said:

“They impress as being suitable and well-trained for looking after the spiritual and physical welfare of children but with the exception of the superintendent I do not consider they would have an adequate control of post-school children.  I did not observe one member of the staff participating in outside recreation or play with the school children.  The older school boys need a male staff member with whom they can share their pleasure and worries.”

He was far less complimentary about the location of the Home and of its facilities.  He wrote:

“The buildings are inadequate to segregate properly the school children from the adults.  By looking after adult coloured people the mission is supplying to the best of its ability an urgent service to the community.  However, it is obvious that it is not in the interests of school children to be in close contact with such adults in distress.  If the home is to continue as it is there should be different arrangements made in this respect.”

Mr Lovegrove was shown this passage in Mr Ryan’s report; he agreed with what had been written.  Further on in his report, Mr Ryan added:

“Under present circumstances the location of the Retta Dixon Home is most unsatisfactory, and, although its work is of definite importance as a temporary measure as it meets the immediate demand for the physical needs of half-caste children, it can offer no assurance regarding a successful future for the inmates.  It is not suggested that this situation is the fault of the mission so much as it is that of the circumstances under which the staff works.  If there is to be any prolonged delay in transferring the Retta Dixon Home from Bagot Road I would have no hesitation in recommending that some of the children be divided between Croker Island and Garden Point if only as a temporary measure.”

534               The Retta Dixon Home did not enjoy the support of Mr McCaffrey who in 1954 was the Darwin based Acting Director of Native Affairs.  In a report dated 3 February 1954 to the Administrator, he was scathing in his comments about the staff and the qualities of the Home.  As to the staff he wrote:

“Apart from the Superintendent, Miss M. Shankelton, the staff are in my opinion quite unfitted to undertake the care of these children, and in one particular case of an adult male assistant, I have observed him displaying an overbearing manner and dealing out brutal chastisement on the inmates with a rope or strap, whichever happens to be handy.”

535               The Administrator, Mr FJS Wise, in writing to the Secretary, Department of Territories in Canberra on 9 July 1954 quoted this passage from Mr McCaffrey’s letter.  In that letter Mr Wise was discussing a proposal for the removal of all part Aboriginal children, presently in institutions in the Darwin area, to Gawler in South Australia.  He was particularly critical of the conditions at Retta Dixon Home.  He said of it:

“I have no compunction in saying that as the Retta Dixon Home is so badly sited and so ineffectively controlled, that the claims of Reverend E.C. Long are quite unimpressive.  If we are to control these children in a home where fundamentals of hygiene, moral training and social adjustments are to be dominant the Gawler proposal appears to be well on the way towards a solution.”

The reference to “control” over the children is quite significant.  The sources of the Administrator’s criticism were the liaisons, which he described as “undesirable”, between the “coloured girls” from the Home and the “full blood Aborigines” from the Bagot Reserve.  These contacts, according to the Administrator, were made at “regular prayer meetings attended by both coloured girls and full blood Aborigines” which meetings were countenanced by the missionary personnel.  He added:

“The staff are unrealistic and are obviously untrained in the necessary welfare activities which ensure a better social adjustment for the adolescent boys and girls under their control.”

This passage from the Administrator’s letter was put to Mr Long during the course of his cross-examination.  He agreed that it was “strong language”; he said that the letter was written at about the time when there were discussions that the Retta Dixon Home would move to a location in Winnellie.  However, as he said:

“… nothing came of it.  The mission didn’t have money to – to commence a program like that and the – the Welfare Department didn’t have it, and so somehow or other the plan fell through.”

536               As to the qualities of the Home, Mr McCaffrey had this to say in his report of 3 February 1954:

“I have no hesitation in stating that the Home in its present location and form is a failure, and the children are merely benefiting to the extent that they are clothed, fed and are receiving some form of education.  The only other contribution to their upbringing is perhaps the religious training given by the staff which to my mind is made to play far too important part in their formative years, and is far too restrictive.  From my observations, I would say that the majority of ex-Retta Dixon Home children are composed of an anti-social group, and seldom raise themselves above what might be termed the slum element in the community of Darwin.”

537               The Home was the subject of yet another adverse report in the following month.  On 25 March 1954, Mr AF Marsh, the local health inspector, reported on the condition of the Retta Dixon Home to the Deputy Director of Health in Darwin.  The contents of this report were highly critical of the Home.  Mr Marsh described the sanitary accommodation as “dirty, unserviceable and insufficient”.  He said that the boy’s latrines were “filthy”; they were blocked and covered with a heavy stain and slime.  Elsewhere, food wastes were in various stages of decomposition.  A week or so later, on 1 April 1954, Mr Sweeney made an inspection of the lavatory block at Retta Dixon Home in the presence of Miss Shankelton.  He was able to report that the place was clean and he added that “the inspection has had a salutary effect on Miss Shankelton and her staff and the disgraceful state of the lavatories reported has been corrected”.  Although the contents of Mr Marsh’s report disclosed a shocking state of affairs at the Retta Dixon Home, it was the only such report that was tendered in evidence; hence it cannot be regarded as typical of the sanitary conditions at the Retta Dixon Home during the period that Lorna was a resident.  For example, patrol officer Ryan, in his report of 17 August 1953 on the Retta Dixon Home, had described the buildings as inadequate, but he did not have anything to say adversely on matters of health and hygiene.  Mrs Moy was asked in cross-examination whether she ever inspected the toilets and bathroom facilities at Retta Dixon.  She replied saying:  “No we didn’t – weren’t allowed, no”.  Despite this she said that she felt that she would have been welcome to inspect those facilities had she asked.

538               Following upon a direction from Mr Giese, Mr Ford, accompanied by Mrs Moy, interviewed Miss Shankelton regarding the amenities that were provided for the children who were cared for at the Retta Dixon Home.  He submitted his report dated 25 November 1955.  Mr Ford wrote in part:

“I am inclined to feel that some of the views of this Society, particularly in regard to accepted forms of evening recreation, are very limited, and that as these children will be forced to make their own way through life within the next few years, it is very important that they should now be permitted to attend such recreational facilities as pictures, dances and social evenings and to learn to mix and conduct themselves properly with other members of the community.”

539               Mr Ford commented favourably on the facilities for basketball and the library; he said that whilst there was no recreation hall, an area had been provided for the children to play such sports as “ping pong, monopoly, dominoes and such other games”.  He added that Miss Shankelton stated that these games were popular “in spasms”.  Films were provided at the Home from the Public Library or the Society’s representatives in other States but Mr Ford reported that Miss Shankelton stated:

“That it was the policy of her Society not to encourage children to attend the local picture theatre, as the Society members were of the opinion that they were detrimental to the children.”

Mr Ford expressed the contrary view in quite strong terms in his report adding:

“A factor which I think is being overlooked by the society is that the majority of the inmates of the Retta Dixon Home are Wards of the Director of Native Affairs and the Director should therefore have a strong say in what liberties should be granted to the children when they approach the age when they will be able to undertake their own responsibilities.”

540               Although Mr Ford, when giving his evidence, could not recall the occasion of his inspection, he reaffirmed his opinions as stated in his report.  Counsel for the applicants  asked Mr Ford whether he attributed the restrictive attitudes that were practised at the Retta Dixon Home to religious beliefs; Mr Ford said that he could not comment on that.  Mrs Moy was shown a copy of Mr Ford’s report and, notwithstanding that she was recorded as participating in the interview, she said that she did not remember the occasion.

541               Overcrowding at the Home was another matter however.  In a “Review Report” dated 27 September 1951, Mr Gordon Sweeney, the District Superintendent, reported upon the Retta Dixon Home.  He commented that the Home occupied a position where there was “no opportunity for expansion and their accommodation is crowded”.  He said that, as at 1 July 1950, there were sixty-seven children and ten adults in the home, but twelve months later, as at 30 June 1951, there were eighty-one children and twelve adults.  Mr Sweeney went on to say that approval had been given by the Minister for the transfer of the Home to a new site, but as events transpired, no move took place.  Mr Sweeney’s report dated 25 October 1954 to the Acting Director of Native Affairs also addressed the subject of overcrowding:

“All of the dormitories are overcrowded and during the wet season when windows and louvres must be closed at times of storm, the overcrowding is accentuated.”

The Reverend Long accepted that the conditions at the Home were overcrowded.  He agreed in cross-examination that there was a need to move the site of the Retta Dixon Home because of overcrowding in the period up to 1956 and that one of the principle reasons for the need to move was the breadth of the tasks that were being undertaken at the Home.  It ranged from the care of young babies through to accommodation for unmarried mothers.

542               There was also evidence from other witnesses, including some who were called by the Commonwealth, that there was overcrowding at times at Retta Dixon.  I do not consider that the establishment of overcrowding can, however, lead to a situation where it would justify a finding that some person, institution, statutory officer bearer or the Commonwealth breached some duty that might have been owed to Mrs Cubillo.  I have come to that decision for various reasons; in the first place, the evidence did not establish that overcrowding was an ongoing problem nor an intermittent problem that occurred too frequently.  In the second place the evidence did not show that Mrs Cubillo suffered personally in any way from the overcrowding.  Finally, the problem of overcrowding must be considered in light of the lack of facilities in Darwin at that time.  Mrs Moy’s evidence about the critical housing shortage gave some indication of the hardships that the people of Darwin had to undergo in those years.

543               Mrs Cubillo’s story of her time at the Retta Dixon Home was a story of loneliness, hardship and cruelty.  From the time of her arrival until the time she left, she found it difficult to find anything good to say about the Home.  Her first experience was the unexpected and – to her – hurtful reaction to the Phillip Creek children by the children who were already at the Retta Dixon Home.  It was a small matter, but it set the scene for other and larger events.  Mrs Cubillo as a small child was upset by the colour of her hair.  She and the other children who had come from Phillip Creek had blonde hair.  She said that the other children at the Retta Dixon Home had dark hair and those children ridiculed the Phillip Creek children because of the colour of their hair.  I accept this passage from the evidence of Mrs Cubillo.  Matters of such a personal nature can be intensely embarrassing to a small child.  Although one could hardly blame the Home or the staff for the behaviour of the children, one can understand how such episodes would adversely affect a person’s memories of the Retta Dixon Home.  In response to a question, during her evidence in chief, Sister Johnson said that she could not recollect the Phillip Creek children being, in some way, singled out at the Retta Dixon Home.  However, it should be remembered that by the time she arrived at the Retta Dixon Home, the children had been there over eight years; it is not likely that they would have been the subject of any discrimination after such a lengthy period of time.  Mrs Treloar had no memory of the Phillip Creek children being ridiculed about their hair.  That is not to say that it did not happen; children mostly fire their barbs when adults are absent.

544               Mrs Cubillo described herself at the Retta Dixon Home as “a child wanting some affection”.  She said “I was never hugged in my life in the home”.  She acknowledged that the missionaries would hold and hug the younger children, but that only increased her personal pain.  Mrs Katona’s evidence was to the same effect.  She described the home as “terribly clinical” and lacking in affection.  Mr Anderson said that when he and the other children arrived at the Retta Dixon Home they were scared – “we just was huddled together, we were that frightened, didn’t know what to do”.  There were no other children at the Retta Dixon Home who spoke Warumungu or Warlpiri (other than the children from Phillip Creek) and none of the missionaries spoke either of those languages.  Mr Lane said that he did not remember much about the trip to Darwin, but he remembered arriving at Retta Dixon frightened.  He said of the Home in his evidence in chief “I didn’t like it”.  He also said that Lorna Nelson was at the Retta Dixon Home at the same time as he was but that he could not talk to her as she was his cousin; they were in an avoidance relationship.  There was a consistent story of sadness and loneliness pervading the life of the children in Retta Dixon Home.  Asked whether there was anyone in the Home to whom she could turn for comfort, Mrs Maxine Hill replied:

“No, we just went away and cried on our own and – and we comforted each other.”

Mrs Hill said that, in her years at the Retta Dixon Home, the only person whom she considered “had a little bit of feeling for us kids would have been Mummy Dinham”.

545               Mrs Hill said that she understood her date of birth to be 14 April 1947; she said that her father was a European and that her mother was part Aboriginal.  She had an older brother and a younger sister.  As a three-year old child she, together with her younger sister, then aged only one, was placed in the Retta Dixon Home.  This would therefore have been some time in 1950.  The story of Mrs Hill’s early life was, in my opinion, interesting in that it showed a parent – child relationship that was materially different to the strong bonding that was said to be so typical of Aboriginal families.  Her parents’ marriage had broken up and, as a result, her father arranged for her and for her sister to go to the Retta Dixon Home where they stayed for the next seven years; her brother went to live with their maternal grandmother and an uncle.  During those seven years at Retta Dixon, Mrs Hill’s father visited the children but they never received a visit from their mother.  However, when Mrs Hill was about ten, her mother, who was then living with another man, arranged for Mrs Hill to leave the Retta Dixon Home so that she could live with her mother and step-father.  But, curiously, the mother did not also take the younger sister:  instead, according to Mrs Hill, she arranged for her to be adopted.  During her time in the Home, Mrs Hill was never in the same dormitory as Lorna and, of course, she was not in the same age group.  Whilst that might have prevented her from giving specific evidence about Lorna’s experiences at the Home, it did not prevent her from recounting in her evidence, her assessment of the conditions at Retta Dixon Home during the seven years that she stayed there.  Making allowances for her occasional exaggerations, I feel that I can generally rely on Mrs Hill’s evidence.

546               Asked if she remembered the day of her arrival at Retta Dixon, Mrs Hill said that she remembered “standing at the front gate near where Miss Shankelton had her office and crying”.  She was then asked whether anyone spoke to her and she replied:

“Yeah, I – I saw this girl sitting on the – on the steps at the girls’ dormitory, and I always remembered that girl to be Lorna – Lorna Nelson, now Cubillo.”

According to Mrs Hill, Lorna then came over and comforted her.

547               The children’s daily routine at the Retta Dixon Home was described by Mrs Hill in uncontentious terms.  They would be awakened early in the morning - around daylight.  They would shower, make their beds, get ready for school and then go to breakfast.  After breakfast, and before catching the bus for school, the children had to wash up the breakfast dishes and take all dirty washing down to the laundry.  The boys also had their duties to perform.  Their responsibility was to ensure that the yards and the grounds were clean.  Jimmy Anderson described the boys’ duties.  They had regular jobs to do each day such as “sweeping the gutters, cleaning the sewerage, raking up the yard and lighting fires for the kitchen”.  Upon returning to the Home from school, the children would change into their play clothes.  Some of the girls were required to iron clothes on a roster basis and, if there was other work to be done, the missionaries would allocate it to various children.  The evening meal was at five o’clock and, after washing up and cleaning up, there would be more time for play before evening prayers and bed.  Asked about the food at the Retta Dixon Home, Mrs Hill, who at times had a mischievous sense of humour, described it as always being “ugly”; she said that the children were always hungry and were always stealing fruit from the fruit trees in the yards.  That would lead to a strapping if they were caught.

548               The evidence of Mrs Hill was that she, as a child, had virtually no personal contact with officers of the Native Affairs or Welfare Branches.  She could only recall one incident when Mr Milliken chose a group of children to undergo some form of an examination.  Mrs Hill said that he took the group to their school on a Saturday and sat them down “for half the day doing like a school examination on paper”.  When she was asked about Mr Giese, she said that she knew him by sight but that she had never talked to him; she had gone to school with his daughter and she therefore recognised him, both as a result of his visits to the school and his visits to the Retta Dixon Home.

549               The manner in which the missionaries taught the children about religion upset Mrs Cubillo.  She said that religion was “first and foremost” in her upbringing at Retta Dixon Home.  On Sundays, the children went to church in the morning, Sunday school in the afternoon and another church service in the evening.  No recreation was permitted on Sundays.  She said that she was taught that her Aboriginal rituals and traditions were “associated with the devil” and that people who practised rituals and corroborees “were doomed to the ever-lasting fire of hell”.  She said that those teachings disturbed her because her grandmother and others whom she loved and who had died “were possibly doomed to the ever-lasting fire”.  Asked to identify anyone who preached in those terms, she named Mr Streeton.  Mr Streeton died on 23 February 1974.  Jimmy Anderson also said that religion played a big part in their lives.  He said that they had prayer meetings twice during the week.  On Sundays there was church and Sunday school.  On Saturdays, the boys had to work cleaning up around the Home but they neither worked nor played on Sundays as it was devoted to church.  Mrs Katona, when giving her evidence, said that there was no exposure to Aboriginal culture at the Retta Dixon Home.  On the contrary, the Home tried to wean the children away from it.  According to Mrs Katona, the children were told that their culture was “heathen”.  Mr Lane said that the children had to go to church four times on Sundays as well as Bible prayer meetings on Wednesdays.  Sister Johnson said that she had no memory of hearing any one telling the part Aboriginal children at the Retta Dixon Home that “Aboriginal customs and traditions are associated with the devil and people who practice corroborees would be doomed to the everlasting fire of hell”.

550               Asked to describe their activities on a Saturday, Mrs Hill said that Saturday was “a big clean up day”.  She recalls having to use Silvo and Brasso to clean and she added, with a touch of humour, that the children’s heads were also cleaned “with this white stuff in it and I reckoned it was cattle dip”.  Sunday was a church day all day; the children attended a morning church service followed by an afternoon service and then another service in the evening.  Most of the church services were held in the dining room in the Retta Dixon Home.

551               Mr Colin MacLeod wrote a book about his experiences in the Territory as a patrol officer.  He was cross-examined about some of its contents.  For example, it was put to him that he had some concerns, while in the Northern Territory, about the religious zeal of missionary institutions.  He was taken to a quote in his book:

“…it was true that some churches practised an understanding approach on their missions, but many others did not and it was churches, not the Welfare Branch, that engaged in social engineering.”

552               Mr MacLeod explained the term “social engineering” in the sense that the Aboriginal and part Aboriginal people were, in his opinion, induced by inappropriate means to embrace Christianity.  Mr MacLeod was taken to a further passage in his book which stated “they engaged in social engineering by removing Aboriginal children from their families for ideological rather than pragmatic reasons”.  Mr MacLeod testified that that was his understanding, but he was unable to give a specific example.  These were quite serious allegations against the missionary bodies but they do not reflect in any way on the Commonwealth and therefore, they may be put to one side.

553               Mr McCaffrey did not agree with the approach of the missionaries at the Retta Dixon Home to religion.  In his report to the Administrator dated 3 February 1954, when Mr McCaffrey was acting as the Director of Native Affairs, he said:

“The Aborigines Inland Mission places considerable emphasis on evangelical teachings at this Institution, and in my opinion this is conducted to the detriment of social adjustments which has seriously retarded the outlook of the inmates.”

Mrs Cubillo said that she once asked Miss Shankelton about her (Mrs Cubillo’s) family.  She claimed that Miss Shankelton told her to forget about them, that “… it was God’s will that we came to the home … that my life was here in Retta Dixon, and that God’d take care of everything”.  During his cross-examination it was put to Mr Walter:

“…it was a common theme in the preaching at the Retta Dixon Home that for Aboriginal people, unless baptised, that they were sentenced to the eternal fires?”

Mr Walter said that such a proposition was “absolutely wrong”.

554               Whilst admitting that he did not have personal knowledge on the subject, the Reverend Egerton Long said that the religious instruction at the Home, so far as he could recall, would be usually a reading or a prayer at breakfast time and a reading and a prayer at night in the dormitories.  As for Sunday, there was a Sunday morning service and in addition, there was Sunday School, at which they had a number of teachers in various class groups.  There was then a smaller service in the evening for the older children and some of the workers.  Mr Long would not agree with the proposition that the missionaries at Retta Dixon were “more interested in spiritual or religious matters than in broader issues of Welfare or bringing up of the children”.  His response was:

“After all it was a missionary organisation.  The home offered accommodation and help, hospitality, love, care, opportunity for education, opportunity for sports, and all those things and those workers who were there gladly offered those things and at the same time they hoped that all of the – that many of the boys and girls would come to personal faith in Jesus Christ and that was their heart’s desire.  But at the time - same time if the children did not they still were extended the same love and care and the hospitality and everything else.”

555               In somewhat less formal language, Mrs Moy agreed with the views of Mr McCaffrey, saying that she considered that the missionaries “shoved” religion down the children’s throats.  It was put to Mrs Moy in cross-examination that Mr McCaffrey’s description of the missionaries at the Home as being “unrealistic, narrow and fanatical”, fits in with what she had observed over the years that she was a welfare officer.  However, Mrs Moy would not go that far.  She disagreed, saying that she felt that the missionaries “were doing the best they could under the circumstances”.  Sometimes, the use of the vernacular can sum up, in one sentence, what might otherwise take a page; I accept Mrs Moy’s turn of phrase.

556               In a memorandum dated 6 February 1956 from Mr Giese, the Director of Welfare, to the Acting Administrator Mr Giese wrote that he was concerned about the state of affairs at the Retta Dixon Home and, in particular, the inability of the staff to control adolescent girls and older school boys.  He expressed the opinion that Miss Shankelton and her staff:

“… could do a good job with children of up to about 10 years of age but after that age because of the narrow outlook of the staff, the nature of the programme provided for the children in the Home, the attitude of staff towards the activities of teenage children and the proximity of the Home to the Bagot Settlement, it would be advisable to make other arrangements for the 10 plus girls and boys in the Home.”

557               Mr Giese’s memorandum was put to the Reverend Long during the course of his cross-examination.  Mr Long said that he could not agree.  He acknowledged that Mr Giese was a forceful and capable man and that, although he was compelled to agree that the conditions at the Home were, to an extent, “inadequate and unsatisfactory”, he maintained that the staff “just did the best they could under the conditions in which they found themselves”.  When asked to comment on Mr Giese’s complaint that the missionaries took a very strict attitude, based on their religious beliefs, to the activities of teenage children, Mr Long responded:

“Well, you need to remember that this was 40 – 40 years or so ago and standards were vastly different in those days.  I dare say that if the home were in existence today things would be a great deal different.  But we cannot judge the standards of 1956 by the prevailing standards of 1999.”

558               The cross-examiner persisted that Mr Giese was, himself, addressing the contemporary standards of the day but the Reverend Long stood by his convictions, saying that:

“… I just simply think of those years gone by when standards were very strict amongst church people and I know, in my own life and home, I think our standards then were much stricter than what they would be today.”

The Reverend Egerton Long is, what many people would call, a “good” man.  He had about him a certain gentleness of manner but it did not hide his firm belief in his God or the righteousness of his cause.  But in these answers that I have just quoted, even he had to face up to reality that the conditions that existed at the Retta Dixon Home in the late 1940s and the 1950s were in need of substantial improvement.

559               Mrs Mai Katona, who had also spent time at the Retta Dixon Home as a young child, remembered Mrs Cubillo as Lorna Nelson.  Lorna was older than Mai and Mai saw her as a role model because Lorna excelled at sports and at school work.

560               Mai was born in 1942 and, in 1952, when she was ten years of age, she was taken from her home at Pine Creek.  At that stage she was living with her natural mother’s sister, Kitty (whom she referred to as her mother) and Kitty’s husband, Andy.  She said that her natural mother was working “down the road as a housekeeper” for a local Chinese family.  Mrs Katona’s background was quite different to that of Mrs Cubillo.  She had lived in a conventional western style house in Pine Creek with Kitty and Andy; Andy worked as a railway fettler but Kitty stayed at home.  Mrs Katona had four years of schooling at Pine Creek before she went to the Retta Dixon Home.  She said that she came home from school one day and saw a truck parked outside her house.  A man was sitting in the truck and Kitty was standing by it, obviously agitated.  The man got out of the truck, took her by the hand and said that she was to go with him.  Kitty tried to stop the truck by lying on the ground underneath it.  At that stage of her evidence, Mrs Katona became visibly upset as she relived that traumatic moment.  Counsel for Mrs Cubillo asked her:

“Was there any mention of your own family while you lived at the home? --- Only to the extent that my parents didn’t want me and that’s why I was at Retta Dixon.

And who told you that? --- We were washing one day, down in the laundry, and I indicated that I would like to go home to see my mother and father and – and Miss Dinham said they didn’t want me, that’s why I was at Retta Dixon.

Did that match with your own experience of your mother and father? --- No, it certainly did not because I remember the nurturing that I got and the care, the – the emotional support, and that was no longer there …”

561               She said that while she was at the Retta Dixon Home she never saw her parents (I take her to mean Kitty and Andy), although she claimed that in later life her mother told her that they had visited the Home but were unable to see her.  The reason for that alleged inability was not explored.  Under cross-examination, it was put to Mrs Katona that it was Andy “who was involved in the decision for you to go from Pine Creek up to Darwin”.  Mrs Katona said she had no knowledge of any such arrangement but she was visibly upset by the proposition.

562               There were some occasions during the course of her evidence when Mrs Katona did not impress me as a witness.  It became clear that she could not bring herself to say anything good about the Welfare Branch or the people who were involved in Welfare during her period at the Retta Dixon Home and thereafter.  Documents were produced showing the efforts that had been made to assist her in her personal request, as a young adult, to transfer from Darwin to Sydney.  If the documents accurately recorded the work of the officers of the Welfare Branch and the Administrator, then it would seem that those public servants went beyond the requirements of their duties in their endeavours to assist her.  Mrs Katona would not acknowledge this to be the case.  At one stage, she reacted by suggesting that they were only doing what they were required to do.  In my opinion that was an unfair statement.

563               Mrs Katona left the Retta Dixon Home at about the age of fifteen without the approval of Miss Shankelton.  Unbeknown to Miss Shankelton, she had managed to sit for and pass a Public Service Board examination and had obtained employment in the Public Service.  She refused Miss Shankelton’s entreaties to return to the Home.  Mrs Katona was then, and remains now, a very resourceful person.  In later life, she pursued tertiary studies and is presently employed as the manager of the Aboriginal Policy and Health Education Unit at the Menzies School of Health Research.  Mrs Katona is an intelligent, well-educated person.  Even she would have realised that the generosity and the benefaction of the Welfare Branch would not have extended to paying the costs of her travel from Darwin to Sydney when the reason for the travel was her personal request.  But that is what the Branch did.  The Reverend Long and his family also assisted her.  He remembered her as a girl whom he wanted to help.  He said that she stayed with his family in Sydney “for a week or so” but that he had since lost track of her.  As the reason for Mrs Katona’s grievances were not investigated, it remains possible that her attitude towards the Welfare Branch may have been justified.  Nevertheless, her churlishness created an unfortunate impression.

564               Mrs Cubillo and the other children at the Retta Dixon Home attended a nearby public school in Darwin; she considered herself a good student and said that she excelled at basketball and athletics.  However, she claimed that she deliberately failed some of her school subjects so that Miss Shankelton might not consider her an appropriate candidate for Singleton College, a Bible College that was conducted by the Aborigines Inland Mission where young people were trained as missionaries.  Later in her evidence, however, Mrs Cubillo said that she only reached year eight, the first year in high school.  No contemporaneous school reports or other documents have been found that relate to Mrs Cubillo’s academic ability as a young girl.  Mrs Katona identified Lorna as a girl with aspirations – as one “who wanted to do other things apart from being a domestic”.  She said that Lorna had told her that she wanted to be a nurse.  It was put to Mrs Katona in cross-examination that Miss Shankelton “was supportive and expressed encouragement to Retta Dixon girls to do nursing” but Mrs Katona said “I wasn’t aware of it”.  She was shown a letter that Miss Shankelton had written on 11 January 1952 to Mr CR Stahl, the Acting Director of Native Affairs in Darwin.  The letter said in part:

“It was with satisfaction that we received your intimation that the Deputy Director of Health for the Northern Territory had advised that his department will accept halfcaste girls as trainee nurses.

For some time we have felt that this avenue of training and service should be open to our coloured girls.

Three of our young coloured workers went to the Eastern States for such training in recent years.”

565               Asked for her comment, Mrs Katona could only say that she was not aware of any encouragement to the Retta Dixon girls to do nursing.

566               Mrs Cubillo said of Miss Shankelton that she was a person “I respected”.  At a different stage of her cross-examination she repeated that sentiment saying of her “I had high regards of this lady”.  Indeed Mrs Cubillo acknowledged that she visited Miss Shankelton on a few occasions after she (Mrs Cubillo) had left the Home.  She also sent Miss Shankelton Christmas cards with money.  Miss Shankelton had a nick-name “Lailee”.  Mrs Cubillo said that she knew of this name but that it was not used in her time at the Retta Dixon Home.  Speaking of the nick-name, she said:

“I referred to her as Miss Shankelton; that (ie Lailie) was an affectionate name after my time.”

567               I am satisfied that Mrs Cubillo had, and continues to have, a measure of respect – and perhaps, affection – for Miss Shankelton.  This became apparent when she was being questioned about Miss Shankelton’s attempts to persuade her to study at the Singleton Bible College.  She said that Miss Shankelton had asked her whether “the Lord had spoken to me about going to the college”.  Mrs Cubillo said that she replied “no, he hasn’t”.  Asked whether Miss Shankelton had made any response, Mrs Cubillo gave the following reply:

“Well, I saw a stricken look on her face, I attempted to walk away, almost went back because I hurt her.  I wanted to go back and say sorry, and change my mind, but I forced myself to walk away.”

568               Mrs Katona said that she did not get on well with Miss Shankelton.  According to her, their relationship was one of “antagonism”.  Under cross-examination a slightly different picture emerged.  She agreed that at times she would refer to and call Miss Shankelton “Lailee” but she denied that it was a term of endearment.  She said that it derived from the inability of the young children to say the word “lady”.  Notwithstanding these assertions, she acknowledged that, after leaving the Retta Dixon Home, she corresponded with Miss Shankelton on occasions.  However, she then reverted to her claim that her relationship with Miss Shankelton was one of antagonism.  A letter was put to Mrs Katona in cross-examination.  She acknowledged that she had written it to Miss Shankelton and had signed it:

“Hoping to hear from you soon.  I remain with warmest love, May.”

569               Asked to explain how it could be that she would write a letter to Miss Shankelton in such affectionate terms, yet maintain that their relationship was one of antagonism, Mrs Katona gave a long rambling answer that was difficult to comprehend.  In part she said that she had no one else to refer to and in part she said that she wanted to join the Air Force.  It would seem that she was saying that she thought her chances of obtaining Miss Shankelton’s support as a referee would be improved if she couched her letter in endearing terms.

570               Asked what relationship she had with Miss Shankelton, Mrs Hill replied:  “Well, not much of a relationship at all.”  She went on to add that Miss Shankelton was the Superintendent of the Home but that the children had dormitory missionaries who mainly looked after them.  Mrs Hill had an attitude towards the Retta Dixon Home that was markedly different to Mrs Cubillo.  Whilst she had some ill-feelings about the Home, she was prepared to add:

“The thing I loved about Retta Dixon was the family that I lived with, the boys and girls.  That was my only family.”

571               In later life, Mrs Hill’s baby son was placed in the Retta Dixon Home.  She agreed to this happening rather than seeing him adopted.  She said that she had some affection for Mummy Dinham even though she strapped her and she also said that she had, in the past, gone back to Retta Dixon to attend Bible meetings with Miss Shankelton.

572               Mr Jimmy Anderson’s memories of Retta Dixon were not as bitter as those of Mrs Cubillo and Mrs Katona.  That is not to say, however, that he enjoyed his time there.  He told, for example of the one occasion only when he saw a member of his family whilst he was at the Retta Dixon Home; that was when his older brother visited him.  (Under cross-examination however, Mr Anderson said that his brother visited him two or three times at intervals of two to three years).  The brother was then living at Phillip Creek and, according to Mr Anderson, he could not visit as a matter of course without getting permission from the Welfare Branch and because of financial constraints.  During the course of his cross-examination, it was put to Mr Anderson that his brother knew where to find him at the Retta Dixon Home and Mr Anderson agreed.  Even so, if Mr Anderson’s evidence is to be accepted, it would seem that this meeting was not officially sanctioned.  His brother was not permitted within the grounds of the Home; instead a message was passed to Mr Anderson and the brothers had to meet secretively in the bushes outside Retta Dixon.  Mr Anderson acknowledged that he saw the parents of other children visiting them at the Retta Dixon Home although he said that it did not happen often.  He said that he could not remember whether children went home during their school holidays.

573               Mr Anderson ran away from the Home several times, but on each occasion he was brought back , as he said, “by the Welfare”.  On one occasion, when Mr Anderson and some others ran away from the Home, he was brought before Mr Giese.  Mr Anderson said that Mr Giese “put us through some tests and got us first jobs we ever had”.  Mr Anderson was taken on as an apprentice panel beater.  At that point in time, he was still living at the Retta Dixon Home, aged about sixteen or seventeen.  The vocational testing that Mr Geise organised for Mr Anderson also involved Mr Milliken.  The subject of Mr Anderson’s employment was discussed in Mrs Moy’s report to the Director of Welfare, dated 21 February 1956.  She wrote that, on 13 February 1956, Ms Dinham, the Acting Superintendent of the Retta Dixon Home, had reported to Mrs Moy that some boys had left the Retta Dixon Home without obtaining permission from the Director of Welfare.  One of those was Jimmy Anderson – another was Willy Lane.  The report stated that he and the other boys had been earlier admonished by Ms Dinham on the preceding Friday for refusing to do their chores.  The report concluded with the comment that Jimmy Anderson and one of the other boys had been returned to the Retta Dixon Home until other accommodation could be obtained for them.  A week or so later, on 22 February 1956, Mrs Moy reported that the Commonwealth Employment Bureau had been able to place Jimmy Anderson in employment, working as a panel beater with a business house in Winnellie.  In that report, Mrs Moy had also stated that Mr Milliken had conducted vocational guidance tests earlier in the month on 7 and 8 February for Jimmy Anderson, Willy Lane and another boy, Roger Roman.  It was this test that led to Mr Anderson’s apprenticeship.  The two other boys from Retta Dixon Home, who were tested at the same time, were also placed in positions as a result of the testing.

574               Mr Anderson duly left Retta Dixon Home when he obtained his apprenticeship.  It also transpired that he was a very good footballer – good enough to play league football for the West Perth Football Club along with another boy from the Retta Dixon Home, Bill Dempsey.  That was in about 1959.  Prior to playing senior football, Mr Anderson had played with a local Darwin team.  As he acknowledged, that meant that he played on a Saturday afternoon and trained twice weekly on Tuesdays and Thursdays.  At some stage during his football career, he was still an inmate at the Retta Dixon Home but he was not restricted from attending his training or from playing on Saturdays.

575               After Mr Anderson left the Retta Dixon Home, he hitch-hiked down the Stuart Highway to Phillip Creek, Seven Mile Creek and Tennant Creek looking for his family; but he was unsuccessful.  He found out later that they had all shifted to a new Settlement at Warrabri, but, at that time, he did not know where Warrabri was.  Years later he found his mother by accident.  About twenty years ago he was in Katherine when he saw the Warrabri bus pull up on the other side of the road.  He walked across the road and called out, identifying himself by his Aboriginal name.  He said there was:

“a big scream and shout and I didn’t know what was going on.  I found out that my mother was on the bus.  She came out, but I couldn’t communicate with her.  She couldn’t speak a word of English.”

He, by then, had forgotten his language.  As he said, he lost his language and he lost his culture.  His mother is now dead.  He never saw her again but he did not explain why this was the case.  It was another indictment on the policy of removing young children from their mothers without retaining some means of contact between mother and child.

576               Asked to describe his time at the Retta Dixon Home Mr Anderson said:

“We couldn’t go anywhere, wasn’t allowed anywhere, we had no parents to visit us, we had no close relatives living around there, and a lot of time it was hard, lot of time it was nice – nice when you made it yourself …”

It was put to Mr Anderson that, at one stage, he was involved in an altercation with Ms Dinham who, at the time, was the Acting Superintendent of the Home.  Mr Anderson denied this and speaking of Ms Dinham with obvious feeling, he said:

“She’s one woman a lot of those boys worshiped and loved and still love although she passed away, but which she has never said a bad word against us or ever tried to kick us out of the Retta Dixon.”

His answer showed that some affection was generated at Retta Dixon.  Mr Anderson acknowledged that he kept in touch with Miss Shankelton after he left the Retta Dixon Home.  He said that he “classed her as a mother”.  Asked in cross-examination whether he had any difficulty in speaking to Miss Shankelton, Mr Anderson said that he did not.  Mr Anderson acknowledged that his three children were also placed in the Retta Dixon Home for a short period of time.  This resulted from a domestic dispute but he denied that he was the party responsible for placing the children in the Home.  He said that it was his wife.  Accepting this assertion as accurate, it still remains significant that he did not object to his children being placed in the Retta Dixon Home.

577               Mr Anderson said that he attended the Going Home Conference (which took place in October 1994).  However, he could not remember the year and it was his recollection that he did not attend all of the sessions.  He said that he did not talk to people at the Conference about what had happened to him at Phillip Creek or at Retta Dixon.  Asked to explain why that was so, he said that everything was “very personal to me”.

578               Mr Anderson tired visibly under cross-examination and became irritable.  He resorted, on many occasions, to saying that he could not remember various events when they were put to him.  Whilst I do not think that he was being deliberately evasive, I do feel that he lost his concentration.  For example, early in his examination in chief, he was quick to say that there were a total of fifteen or sixteen children on the truck when it left Phillip Creek for Darwin.  Under cross-examination he was asked in great detail to describe the events leading up to the removal on the truck.  He could not remember the time of the day – he could not remember who asked him to get on to the truck.  He was then asked:

“Do you remember how many got on the truck?”

His answer, which followed a pattern of earlier answers, was:

“I don’t remember that.”

579               An example of Mr Anderson’s truculence during the course of cross-examination appears at pp 1464-1465:

“How many years were you at Retta Dixon? --- About 15 or 16 years.

About 15 or 16 years; is that right? --- About that, I don’t remember.

Well, you didn’t leave – go there until 1947 and I thought you were agreeing with me that it was about 1956 that you left or thereabouts.

Am I wrong about that? --- I don’t remember.

That would only be a period of 9 years; would that be right? --- I don’t remember.

You left when you were 16, 17 years old; you arrived there when you were about 8 years old, something like that?--- I don’t remember.

Very different to 15 or 16 years? --- I don’t remember.”

580               In many cases, this sort of reaction would cast serious doubts on a witness’ credibility.  However, I do not think that I should use this irrational behaviour on Mr Anderson’s part as a ground to disregard his evidence.  I am prepared in his case, to accept it as a reaction to tiredness, irritability and the pressure of cross-examination.  In some respects his evidence was uncontentious, in other respects it was corroborative of what Mrs Cubillo had said. Then again, there were matters in which his evidence was at odds with that of Mrs Cubillo (such as his relationship with Miss Shankelton) but I have no reason to doubt the accuracy of that evidence.  A relationship between two people is personal.  The fact that he had fond memories of Miss Shankelton and Ms Dinham does not mean that all children would have had identical relationships.

581               Mr Willy Lane described harsh floggings at the hands of the male missionaries, Mr Matthews, Mr Pattemore and Mr Walter.  He said he saw other children being punished:  “We all got flogged”.  Later he increased his description, saying:

“We all got hidings from all of the missionaries that were there, but the main flogging we used to get was by the three that I’ve mentioned.”

He claimed that the level of corporal punishment was so severe that the resultant marks on his body caused his schoolteacher to call the police on two or three occasions.  However, that subject was not explored in any further depth.

582               Mr Lane complained about the brutality of Mr Walter.  He recounted two incidents, one concerning a broken cot and another that dealt with an episode when some boys ran away.  These incidents were not put to Mr Walter in cross-examination.  I do not intend therefore to refer to them.  Mrs Maxine Hill also made a particularly serious allegation about Mr Walter’s behaviour which, if true, might have amounted to indecent assault on another young girl.  That allegation was not put to him in cross-examination and, for that reason, I will not mention it further.

583               It was Mr Lane’s evidence that Mr Pattemore “kicked him out” of the Retta Dixon Home along with some other boys.  He said that this occurred at a point of time after he had left school.  Why this should have happened is not clear.  Furthermore, it was contradicted by the contents of Mrs Moy’s report dated 21 February 1956, to the Director of Welfare.  The report confirmed that the boys had been interviewed by Mr Giese and that Willy Lane had been granted permission to stay with Mr and Mrs Peter Pang Quee.  That report was put to Mr Lane in cross-examination and he did not deny its contents so far as they applied to him.  A week or so later, on 22 February 1956, Mrs Moy reported to the Director of Welfare that the Commonwealth Employment Bureau had been able to place Willy Lane in employment, greasing with a Darwin firm, Johnston Motors.  However, Mr Lane said in evidence that Mrs Moy of the Welfare Department “tried to send me back to Retta Dixon Home, and I told her I don’t want to go back there”.  He added that he told her of the floggings that he used to get and that he was “kicked out” for no reason.

584               Mr Lane said that after he left school “I went in and approached that Johnston Motors for a job on my own accord for the job”.  He made this assertion notwithstanding that the cross-examiner had first given him the opportunity of reading, Mrs Moy’s report of 22 February 1956.  It said in part that William Lane (and also the witness Jimmy Anderson) and another boy from Retta Dixon had been given vocational tests by Mr Milliken.  The memorandum continued that the results of the tests had been conveyed to the Commonwealth Employment Bureau and that it had been able to place each of the three boys in employment.  I accept the contents of this report in preference to Mr Lane’s memory that he obtained his employment unaided.  He remained adamant that the Commonwealth had nothing whatsoever to do with him getting the job; he would not allow for a proposition that he had not applied for the job personally but at the instigation of the Employment Office.  He agreed that he and others had attended vocational tests but claimed that they were “most probably to send us to go as a stockhand out in the bush”.

585               Under cross-examination Mr Lane became, first, defensive, then truculent.  He has instituted proceedings in the High Court claiming compensation against the Commonwealth, allegedly because he is a member of “the Stolen Generation”.  That proposition was put to him and he agreed with it.  However, when a copy of the Writ was put to him he denied that he had ever seen it – he claimed that he did not know that it had been issued and he claimed that he had never given instructions for its issue.  Mr Lane is not illiterate; he showed himself in the witness box as one who has a reasonable comprehension of general matters.  When asked his occupation he stated that he worked as an Essential Services Officer at the Belyuen Community.  Either a legal practitioner has proceeded to issue a Writ out of the High Court in Mr Lane’s name without instructions (which I have great difficulty in accepting) or Mr Lane was wrong in the answers that he gave in cross-examination.  Asked whether he had attended the Going Home Conference, Mr Lane said:  “No”.  However, when a photograph was produced and it was put to him that it was a photo of him at the Conference he was forced to agree.

586               Towards the end of his cross-examination, Mr Lane was asked whether his evidence was that he had bad memories of the Retta Dixon Home.  He answered this question openly and convincingly.  He said:

“I had bad memories and I had good memories, fond memories of Retta Dixon Home too.”

587               Mr Lane’s two children were also placed in the Retta Dixon Home for a year or two.  But he said it was against his will and that his wife did it “just to hurt my feelings”.  Mr Lane was not questioned about his attitude towards Miss Shankelton but I note that on one occasion, when referring to her in an answer, he called her Lailee, but then corrected himself and called her Miss Shankelton.

588               Mrs Cubillo claimed that both Ms Dinham and Ms Spohn had punished her by hitting her with a strap.  So also did Mrs Maxine Hill.  Mrs Cubillo said that at the Retta Dixon Home the children were not permitted to speak their native tongue.  She said:

“we had our language flogged out of us.”

Mr Anderson confirmed Mrs Cubillo’s evidence:  he also said that the children were punished if they spoke their Aboriginal languages.  They were either given the strap or sent to their rooms.  Mr Lane said that the children were made to speak English “otherwise we’d be getting a hiding”.  Mrs Hill’s first language was Malak Makak; she was not able to maintain her language at Retta Dixon.  In her particular circumstances, that was not unusual because none of the other children or staff spoke that language.  Sister Johnson was not aware of any prohibition on the children speaking their native tongues and she described as “laughable” the proposition that Miss Shankelton or Ms Dinham or Ms Spohn belted the younger children with a strap for speaking their native language.  Although Mrs Treloar did not think that the Home had a policy about the children not speaking their traditional language, she did believe that it was discouraged.  Mrs Marjorie Harris said that she had never heard of children being punished for speaking their own language.

589               It was Mrs Cubillo’s evidence that as a small child at the Retta Dixon Home she was “belted around the legs by female missionaries”.  She said that, as she grew older, Miss Shankelton sent her to one of the male missionaries for punishment.  She claimed that children were “flogged” for “trivial things, being late for tea and not finishing our chores on time”.  During the course of her cross-examination, it was put to Mrs Cubillo, and she agreed, that she had earlier identified Ms Dinham and Ms Spohn as two female missionaries at the Retta Dixon Home who had administered corporal punishment to her.  The cross-examiner then put to her:

“They were the only female missionaries who, you say, strapped you?”

Mrs Cubillo’s subsequent answers were difficult to evaluate:

“That was when I first arrived in the home and – and couldn’t speak English.

Right.  But they were the only female missionaries who, you say, strapped you? --- Only to stop me from talking my language.

Right.  Perhaps I’ll rephrase it.  Were there any other female missionaries who strapped you? --- I was only flogged by the male missionaries after that.

And can we just identify which male missionaries do you remember? --- Mr Stretton, Mr Walter.

They’re the only male missionaries you remember? --- They’re the ones who flogged me with the strap.

Right.  So they’re the only males who flogged you? --- That’s right.”

I take this passage to mean that neither Ms Dinham nor Ms Spohn administered corporal punishment to Lorna regularly or routinely during her stay at the Retta Dixon Home but that they only did so in her early days to break her of the habit of using her native tongue.  This passage in Mrs Cubillo’s evidence was supported by Mrs Katona, but not with the same emphasis.  According to Mrs Katona, the children at Retta Dixon were told not to use their native languages. She said that if they were caught speaking their own language they would be punished:

“I was either smacked or locked up in the room for disobeying orders.”

590               It is one thing for the missionaries to insist that the children speak English and to smack them or lock them in their rooms if they were disobedient and spoke their mother tongue.  It is an entirely different matter to “flog” a child for disobedience of this nature.  When this subject of corporal punishment was revisited in cross-examination, Mrs Cubillo added Miss Shankelton to the list of those who had “flogged” her:

“I had understood, and correct me if I’m wrong, but I had understood your evidence to be that when you were younger, at Retta Dixon, it was those two female missionaries who flogged you? --- Three female.

Who is the third? --- I told you their names, Mrs Hollingworth.

Who is the third one? --- Ms Shankelton, Ms Spohn and Ms Dinham.”

591               The subject of female missionaries administering corporal punishment had earlier been discussed and Mrs Cubillo had only identified Ms Dinham and Ms Spohn.  Miss Shankelton had been discussed but Mrs Cubillo had not mentioned her as one who had administered corporal punishment.  Miss Shankelton, Ms Dinham and Ms Spohn, the missionaries who Mrs Cubillo said had strapped her around the legs and told her to speak English are all dead and cannot answer or explain these charges.

592               I am satisfied that discipline at the Retta Dixon Home was, on today’s standards, very severe.  Mrs Hill’s evidence was:

“We got the strap or we had to go to bed without tea or we were put in the kitchen to do dishes and we got punished for all sorts of things, just breaking any little rule in the home, like, if we were caught chewing chewing gum, for instance, that was banned from the home or reading comics, if we said shut-up to another kid.  All those little things we were punished for.”

593               Mrs Cubillo said that when she arrived at Retta Dixon, the children who were already there were all speaking English.  She went on to agree, in her cross-examination, with a proposition that at the time of her arrival she did not speak any English.  She said:

“That’s right.  So I only hung around people who I came with because I conversed with those children in my own language.”

However, the cross-examiner did not let the matter rest there.  She forced a concession out of Mrs Cubillo that in the two years or so preceding her being taken to the Retta Dixon Home, she had attended school at Phillip Creek where she was taught – in English – by Mr Colley.  Even if the schooling was limited to an hour a day (as Mrs Cubillo claimed in evidence), she must have picked up more than a smattering of the English language in that period of two years.  In coming to that conclusion, I have not lost sight of the fact that she said and I accept, that, at Phillip Creek, she would have spoken her native tongue to her family and friends out of school hours.  It was put to Mrs Cubillo that she ceased to use her traditional language at the Retta Dixon Home as a matter of necessity because everyone spoke English.  Mrs Cubillo responded angrily:

“Miss Hollingworth, I was flogged. I was flogged.  Our language was flogged out of us.  I know what happened to me.”

I regard this passage of her evidence as another example of subconscious reconstruction.  In the hurt and suffering that Retta Dixon came to represent, nothing about it was good:  nothing was a cause for happy memories.  Undoubtedly, there were incidents when she spoke her native tongue and she was punished for being disobedient.  However, out of such incidents, there has escalated the vitriol that was evident in her last answer.  I am satisfied that the missionaries discouraged the children from speaking their native tongue but I cannot find why this was so.  One possibility is that there was a specific and conscious decision to stop the children speaking their first language but a more likely reason was one of practicality:  that is, the children had to learn English so that there could be communication, by means of a common language, between the children and between the children and the staff of the mission.  I am prepared to accept that the children were punished for speaking their native tongue; however, I am not prepared to apply the word “flogged” as being descriptive of that punishment.

594               The evidence that the Commonwealth called about life at Retta Dixon and the conditions of the Home was in marked contrast to the case for Mrs Cubillo.  The first of the Commonwealth’s witnesses was Mrs Ruby Matthews.  Her mother was an Aboriginal and her father, an Englishman, had run the local store at Ti-Tree.  She said that the missionaries had told her that her birthday was 5 April 1935.  Mrs Matthews described her childhood as “horrible”.  She claimed that her mother never “showed love” for her, never hugged her or gave her any affection.  She said that she was “unwanted” by her mother because she was a half-caste – that she still carries the scar on her head from the blow that her mother gave her with a firestick – and that she had witnessed Aboriginal mothers kill their unwanted half-caste babies.

595               Mrs Matthews told of the day when she was taken away by a police officer or a welfare officer.  She said that she was about six years of age at the time.  She did not know whether this had been arranged by her father, but she said that her father used to say to her:

“You’ll be going away soon.  One day you’ll have to go away.”

Mrs Matthews said that she was first taken to Alice Springs and then to Balaklava in South Australia.  From Balaklava, she and some other children were moved to “Saints” and there she met Miss Shankelton, Ms Spohn and some other missionaries.

596               Mrs Matthews said that Miss Shankelton, who she knew as Lailee, “treated us very well” and Ms Spohn “was lovely too”.  It was put to her that Mrs Cubillo had described Miss Shankelton as a person who was not approachable, but she insisted “she was a beautiful lady, that’s all I can say”.  Sometime after the end of the Second World War, the part Aboriginal children from “Saints” were taken to Darwin to the Bagot Compound – it later came to be known as the Retta Dixon Home.  When Mrs Matthews was asked to describe her dormitory, she said it was “lovely” adding “very comfortable, we had beds and mattresses and mosquito nets.  It was beautiful”.  She said that the older girls slept in the gaol-house.  Her description of the gaol-house (which she said was locked for the girls’ protection) was as follows:

“It was a nice clean little place and we were locked up every night at about 9 o’clock.  And we enjoyed the place.  We played and laughed in there.  The floors were that shiny we were swirling around on the floors.  It was happy place.  I enjoyed the times there.

What did you - where did you go to the toilet when you were at the gaol house? --- We had our own toilet in the room. It was all made out of cement and iron bars, but it was nice.

And approximately how many girls were in the gaol house room when you were there? --- I think there was about six of us, six or seven.”

Mrs Matthews, whose recollection was that the gaol-house had a “pull-chain toilet”, became positively enthusiastic when describing the quality of the toilet:  it was never dirty nor unserviceable; it was spotless; never filthy and it had no drainage problems.  That was not a description that was universally adopted by all witnesses, but Mrs Katona, when describing the dormitories and the living conditions at the Retta Dixon Home, did say that “they were extremely clean.  [Y]ou could eat off the floor”.  She also said that the school children were “extremely neat and clean”.

597               Sister Johnson knew that the girls’ dormitory was locked but she did not know whether it was locked from the inside or from the outside.  She did however believe that Ms Spohn slept in the dormitory or had a room in the dormitory in which she slept.  Mrs Hill said that their dormitory door was padlocked at night.  There was a pan for the children that was located in the dormitory but otherwise they had to call out for a dormitory mistress to escort them to the toilet.  In any event, Sister Johnson was firm in her evidence that the door was locked for security reasons and principally because of the proximity of the Bagot Reserve.  She, like other witnesses, was concerned about the proximity of the Bagot Reserve.  As Sister Johnson pointed out, there was only a fence separating it from the Retta Dixon Home and there was “a lot of drinking and gambling on the Reserve”.  Mr Jimmy Anderson also said that whilst he was at the Retta Dixon Home, the children were not allowed to talk to the full blood Aboriginal people who were living on the Bagot Reserve.  If this rule was breached the offender would be punished.  Sister Johnson said that she could remember the girls using the term the “the gaol house” but she could not recall the actual place.

598               Mrs Matthews continued her praises for the missionaries.  Speaking of the people at Retta Dixon she said:

“They were beautiful people, they loved us, they was very compassionate towards us.”

She said that when the girls had problems, the missionaries “put their arms around us, kissed us, spoke lovingly and kindly to us and I cannot rubbish any of them, they were exceptionally good”.  Mrs Matthews agreed in cross-examination that the staff at Retta Dixon did not allow the children to mix with anyone outside the Home but this in no way diminished her happy memories of the Home.  Mrs Matthews was and is, in many respects, a very fortunate person.  Where some would find loneliness, harshness and cruelty, she was and is able to find goodness and happiness in everyone and everything.  She talked of the missionaries teaching the girls how to cook, wash and iron and when asked to explain why “those were good things” her answer revealed her simple contentment:

“Well, we had to face the world one day and they was teaching us to do this and that, how to wash and iron, how to keep the house clean, marks on the walls and things like that, they taught us how to be clean, how to dress up and how to look after babies. We had 32 babies in that nursery and we did the rounds by caring for all those babies.”

Mrs Matthews agreed in cross-examination that she knew from the age of twelve that the missionaries were training her to do domestic work.

599               The subject of her childhood memories was explored in cross-examination and the following passage in the evidence gives some indication of how Mrs Matthews remembered her life as a child:

“And there’s been a great deal of sadness in your life since you left Retta Dixon, hasn’t there? --- Yes. Retta Dixon Home was a beautiful home for kids like us.

Retta Dixon Home, really if you look back on it, you would say to the judge was the best part of your life? --- It was, your Honour.

Because of what you’ve described in being brought up by your mother? --- In a humpy with dogs and filth.

Because of that …? --- Yes.

… what you’ve described with your mother and because of the sadness in your life since you left Retta Dixon Home; is that correct? --- I was happy at the Retta Dixon Home, but I wasn't happy with my mother. Is that what you mean?

600               Mrs Matthews agreed that the missionaries administered corporal punishment but her description was “two or three” smacks with a stick:  “we weren’t flogged if that’s what you mean”.  She said that she never saw Ms Dinham (whom she regarded highly) nor Ms Spohn hit a child.  She had happy memories of all the native missionaries and of “Pop” Streeton, one of the male missionaries, who taught her to drive a car.  She said that he was too kind to administer corporal punishment.  The only one of whom she spoke ill was a man called Howard.  She described him as “cruel”.  She recounted an event when he allegedly flogged two boys.  She said that the children reported him to Miss Shankelton and that the missionaries “outed” him.

601               Mrs Matthews’ description of the children’s daily chores and their routine was consistent with other witnesses.  She had no complaints about the children’s clothing but was firm in her recollection that not all of the children had shoes to wear to school.  She also said that they had church services on Sundays in the morning and evening but she said that there were no restrictions on playing games on a Sunday.  When she was asked about going home during school holidays, Mrs Matthews replied, sadly:

“What home, dear?  What home?  I never went near my mother.”

602               Mrs Matthews remembered Lorna Nelson and the arrival of the Phillip Creek children.  She said that they were not singled out in any way; they were all part of a bond.  She was told that Mrs Cubillo had said that she had been regularly thrashed and belted; her answer was “well, I didn’t see it”.  Mrs Matthews said that she knew in advance about the arrival of the Phillip Creek children.  The missionaries had said that more children were coming “and they were preparing beds and things … and the government supplied all that”.

603               I am quite satisfied that Mrs Matthews was a witness of truth; she gave her evidence truthfully as she remembered her days at Retta Dixon Home.  Her evidence is, of course, diametrically opposed to that of Mrs Cubillo, but that is no cause to label one of them wrong or mistaken.  One only has to recall his or her personal childhood memories to realise that friends of the same age often have very different recollections of the same times and the same events.  One of the best examples of this dichotomy is boarding school:  some children were and are very happy in boarding school:  some of their classmates, doing the same things, working under the same teachers, are miserable and pining for their homes and families.

604               Mrs Marjorie Harris gave evidence on behalf of the Commonwealth.  She said that she was born in 1930 on Mount Swan Station, east of Alice Springs.  Her mother was a full blood Aboriginal, Maudie Elumbuk, a member of the Aranda tribal group.  She said that her father was a European man whose name was Jack McNamee.  At the time of her relationship with Jack McNamee, Maudie was married to an elderly Aboriginal man from Utopia Station by whom she had had two children, Bill and Kitty.  In response to a question during her evidence in chief, Mrs Harris said that her mother and Mr McNamee had a second child, but, so she said, “he was put down by my mother while he was a baby”.  A third child, Molly, lived however.  It was Mrs Harris’ evidence:

“Well, my mother didn’t want me when I was born but afterwards – well, she wanted to do away with me but my grandmother saved me.”

605               Mrs Harris’ evidence that her mother wanted to kill her was the subject of an objection by counsel for the applicants, Mr Dreyfus.  As both applicants had pursued a case that they had enjoyed happy childhood lives in their Aboriginal communities where part Aboriginal children were accepted equally with full blood children, it did not suit them to have evidence presented to the Court that in some Aboriginal communities there was an attitude of violence and death towards part Aboriginal children.  Whilst Mrs Harris’ evidence could not be received as evidence that her mother or her step father had a state of mind that was directed towards her death, she could give evidence of her own state of mind.  It was upon that basis that I permitted her to give her evidence.  Whether or not the source of her information was correct, the fact remained that Mrs Harris grew up believing that her mother wanted to kill her.  She also believed that, in an attempt to kill her, her mother struck her with a stick, damaging one of her eyes.

606               Her mother’s attitude towards her and the relationship with her changed for the better over the years, although it was not clear from Mrs Harris’ evidence when this happened or what caused it.  She said that when a child is born “that’s when they do away with you” but later, if the child is not killed at birth, “they grow up and they bred, (sic) of course they love you”.  Suffice to say, she recounted incidents of maternal affection and concern including a reference to her mother hiding her away when a policeman was in the vicinity.  Despite her history of violence, she was still prepared to agree to the proposition that was put to her in cross-examination that her childhood was a “happy one”.

607               It was Mrs Harris’ evidence that as she grew up in her mother’s community, she was not allowed to participate in traditional life:

“… you have to be initiated into the tribe before you are told too many things about Aboriginal - what is the word, can I say - Aboriginal - the main things in Aboriginal things.  You know, you only - because you are a woman even full-blood, we’re only allowed to go so far and was only taught very little.  It was men who held the rein.  The women weren’t, you know, they had their area - women had their own area where they - you know, they can do their corroboree and things like that women business, not that I was told but that’s what I heard them say, but I was never involved in anything like that.”

Rather, it was her evidence that she was encouraged to go to school:

“ … but everybody else said I ought - I ought to be away because my sister had been taken away earlier and they said I should go away to my father’s people and learn to read and write. They always told me that.”

608               Mrs Harris said that she was about seven years of age when her mother married again; her new husband was a tribal man by the name of Johnny Crow.  Mrs Harris said that he ill-treated her and that, as a result, she spent much of her time away from her mother and with relatives.  Mrs Harris said that she was about thirteen years of age when she was taken from her Aboriginal community by a police officer.  That would have been in about 1943.

609               Her evidence about her departure was difficult to follow save that it was clear that she was then being cared for by some relatives who somehow participated in arranging for her to leave with the police officer.  As for herself, she said she was quite happy to go with him.  Ultimately, she ended up at the Bungalow in Alice Springs with her Aunt Emily who had accompanied her.  After spending about three months at the Bungalow, Mrs Harris said that she was moved, along with others, to Balaklava in South Australia.  One of those others was the witness Mrs Ruby Matthews whilst the remainder were war-time evacuees from Darwin.

610               Initially Mrs Harris was told that she was too old for school, but, because, as she said, of her “kicking up a row” the decision was changed and she was moved to “Saints” to start her school life.  Asked “who was running Saints?” Mrs Harris replied:

“Miss Shankelton, Lailee as we lovingly call her.”

Indeed, Mrs Harris, like Ruby Matthews, spoke of all the missionaries in glowing terms.  It was her evidence that neither Miss Shankelton, Mummy Dinham nor Ms Spohn – all of whom were at “Saints” in the latter years of the War – ever smacked any of the children.  She said of them:

“They were beautiful people; … they couldn’t do enough for us.”

611               Mrs Harris went from “Saints” to the Bible College at Singleton to further her education; she stayed there three years before being posted to Darwin in 1949.  Initially, she spent a few days at the Retta Dixon Home, but her substantive posting was to the Berrimah Native Settlement for full blood Aboriginals where she stayed until 1950 when the Settlement was transferred to Bagot Reserve.  During this period, Mrs Harris said that she was a regular visitor to the Retta Dixon Home.  She spoke of Retta Dixon Home in glowing terms, going so far as to describe it as “Five Star”.  That might, to some, be classified as an exaggeration, but to others, used to different standards, it might have been accurate.  Mrs Harris also claimed that the children were dressed “beautifully” and that there were no restrictions on visits from parents or on the children returning home on holidays.

612               Mrs Harris said that she remembered the children from Phillip Creek.  According to her (but this would have been in 1949 at the earliest) there were no babies in the group.  She said that the youngest would have been about four.  She said that she remembered Lorna Nelson and she disagreed that the Phillip Creek children kept to themselves.  Rather, she said “it was just one whole family”.

613               In 1952, with the assistance of Mr Moy, the Director of Native Affairs, Mrs Harris located her mother and spent four months with her and members of her family.  She then returned to Darwin and in the following year she married an Aboriginal man against the wishes of her friends, the Native Affairs Branch and the mission.  Her evidence about how she came to marry her husband is an interesting insight into the culture of the day.  At that time, she was, so she said, as a part Aboriginal person, prohibited from marrying an Aboriginal.  She had asked for permission to marry:  her future husband had also asked but they were both refused.  It was only when the Native Affairs Branch accepted that she was pregnant that permission was finally granted.  As she said, in agreeing to a proposition that was put to her in cross-examination, the Native Affairs Branch not only controlled the movements of part Aboriginal people, it also controlled their plans to marry.  Mrs Harris left the mission before she married, but she continued to stay in contact after her marriage with the missionaries until the Retta Dixon Home was finally closed.

614               I am satisfied that Mrs Harris gave her evidence truthfully and to the best of her ability.  However, I am also satisfied that she has unknowingly gilded the lily in recounting her memories of the Retta Dixon Home.  Just as Mrs Cubillo has, over the years, allowed herself to develop bad memories about the Home, so has Mrs Harris allowed herself the pleasure of developing and exaggerating happy memories.

615               Sister Jean Johnson gave evidence that she and her husband first heard about the  Retta Dixon Home at a talk at their church; the audience was told that the Home needed a maintenance man.  She and her husband decided that he should apply to the Aborigines Inland Mission for the position.  They were interviewed by the then Director, the Reverend Egerton Long and were subsequently appointed support workers at the Home in January 1956.  While Mr Johnson received a salary for his work, neither of them received a wage in respect of the spiritual work and counselling work that they performed “as cottage parents”.  They remained at the Home for about three years and, during that time, Miss Shankelton was in charge.  Sister Johnson’s husband died in February 1975; thereafter, she completed some studies in music and, later again, was professed as a Nun in the Anglican Church on 1 May 1986.

616               Sister Johnson knew nothing of the Welfare Branch.  She thought that the Home “was entirely run by the AIM”.  She was not aware of visits by welfare officers to the Retta Dixon Home in the three year period that she and her husband were there.  Sister Johnson was asked to give her observations on the way in which Miss Shankelton ran the Home.  She answered by saying that “she did it very well”; she considered that Miss Shankelton was efficient; she added:

“The children were – were neatly dressed and – and they were loved and they were fed well as far as I know.  Just I think she ran it very well.  What else can I say?”

617               Sister Johnson considered that Miss Shankelton had a very good relationship with the children and she added that the children seemed to return her love.  She, like other witnesses, also agreed that everybody, including the children referred to Miss Shankelton as “Lailee”.  Sister Johnson was asked to give her impressions of other members of the staff and their relationship with the children.  She first mentioned Ms Dinham, saying that she was called Mummy Dinham by the children.  She said that Ms Dinham related to the children “like a mother” and that she loved them.  She added “all the missionaries loved the children.  What else would bring them to a place like this”?  I must say that as I heard her say that there was a ring of truth and reality about the statement.  She agreed that there were great difficulties in recruiting staff for the missions.  Her answer conveyed an idea of the difficulties that were faced:

“It was very difficult because only people as mad as Christians who cared and wanted to help who’d come to Darwin to work in – in the children’s home at that time under those circumstances.  I’ve said that the – the buildings were Sydney Williams huts, you know, they – it was fairly primitive.  I don’t even remember having a fan when we were there, and – and people wouldn’t come.”

618               Whereas Ms Dinham looked after the toddlers, Ms Spohn looked after the older girls.  Sister Johnson described her as affectionate to the girls but a more reserved person.  Miss Jocelyn Gadd looked after the younger school age girls.  She also was described by Sister Johnson as “very loving and affectionate”.  Sister Johnson was asked her opinion on the allegation that “children were regularly flogged or beaten for minor misdemeanours”.  She said that she found it “very difficult to believe”.  She added that Miss Shankelton in particular was “very soft; far too soft at times”.  She then proceeded to give an example of how her mother, who was visiting her on a holiday, had been physically assaulted by one of the girls; the assault was sufficiently severe that her elderly mother’s eye had been blackened; but the only punishment given by Miss Shankelton was to deprive the girl of certain privileges.  Sister Johnson said that she was “very cross” that the girl had not been “punished severely”.

619               Sister Johnson acknowledged that she had used a strap on occasions when she had punished her own children.  She said that the normal practice would be to hit the child two or three times around the legs.  However, the occasions were limited to something which she described as “really bad or outright disobedience.  [I]t didn’t happen very often, I might add”.  Sister Johnson, during the course of her cross-examination, agreed that it was important for children to have an opportunity to bond with a caring adult whom they could trust and from whom they could receive affection; she said that she agreed that this was a very important part of the child’s emotional development and for the child’s preparation for living in the adult world.  It was then put to her that this was something that was not always available at the Retta Dixon Home but she would not agree.  Sister Johnson and her husband, whilst residing at Retta Dixon, had a number of part Aboriginal children from the Retta Dixon Home live with them as part of their family.  As far as Sister Johnson knew, she and her husband were the first couple to provide this type of cottage care.  She was firmly of the opinion that such fostering arrangements were far preferable to the dormitory style accommodation.

620               Sister Johnson did not have detailed knowledge of the backgrounds of the children who were resident at Retta Dixon while she was there.  She was, however, able to give some anecdotal evidence, and in particular, she told of the circumstance of one baby girl who, so she understood, had been left at the gate of the home by the child’s mother after the mother had first sought and been refused permission to place her in the Home.  The child was taken in and cared for by the Home.  As for Lorna Nelson, all she could say was that she was a quiet, well behaved girl; she said of her:  “she was very intelligent”.

621               Sister Johnson described the toilet and bathroom facilities at Retta Dixon as “pretty primitive” but she said that in the context that they were “like everything in Darwin in those days”.  She added that the toilets were quite a distance away and she said that her family and the children in the Home relied on chamber pots during the night.  Because of the presence of frogs in the toilets, she said: “I certainly wouldn’t have gone there at night and wouldn’t have expected the children to either”.

622               The last question and answer in Sister Johnson’s evidence in chief paints its own picture.  I have no reason to doubt her integrity.  Just as I have commented on the genuineness of Mrs Cubillo’s beliefs, so also I am ready to extend the same consideration to Sister Johnson.  Her recall of the treatment of the children at the Retta Dixon Home during her time in 1956 to 1959 comes from the following passage in the evidence:

“Can I just ask you finally, Sister Johnson, what you would say about the degree and the type of care that was given to the children at Retta Dixon Home? --- I really believe that the workers that were there like Mummy Dinham and Marge Spohn and Jocelyn Gadd, those workers really loved those children.  I know they did.  They cared about them, they cared about what happened to them and I find it very sad that some of the children are doing this. I’m glad Miss Shankelton isn’t alive ‘cause it would break her heart’.”

623               In its answer to Mrs Cubillo’s claim, the Commonwealth called one of the former Retta Dixon missionaries, Mrs Christine Dora Treloar who, as Chrissie South, worked at Retta Dixon during the 1950s.  Mrs Treloar, who was seventy at the time of giving evidence, impressed me with her keen memory, her attention to detail and her obvious neutrality.  I believe that her evidence about the operations at the Retta Dixon Home and the treatment of the children was probably the best of all the witnesses who gave evidence.  There were, of course, areas where her memory let her down, but for the most part, I am content to rely on what she said.  Mrs Cubillo had fond memories of Chrissie South; she said that she was kind and sympathetic to the children and, because she was part Aboriginal, she understood the children better.

624               Mrs Treloar did her primary schooling to grade 4 at the Cherbourg Aboriginal Settlement in Queensland.  She left school at the age of twelve and started working as a domestic on an outback cattle station.  From there she was successful in applying to the Aborigines Inland Mission to study at its Singleton Bible Training Institute.  After two years at Singleton, Mrs Treloar was posted to the mission at Delissaville in Darwin in 1948.  From Delissaville she moved to the Retta Dixon Home in about 1950 or 1951 and she stayed there until May 1955.  She said that her title at the Retta Dixon Home was “Native Missionary”.  Although she arrived at the Home after the Phillip Creek children, and left before Mrs Cubillo left, she was at the Retta Dixon Home for over five years whilst the young Lorna Nelson was there.  She therefore had ample opportunity to assess the Home during a substantial part of the time that Lorna was there.  Mrs Treloar’s work at Retta Dixon centred upon the care of a group of girls:

“I washed their clothes, ironed, mended, made bedspreads, covers for the mattresses.  I sometimes had to take a turn in cooking in the kitchen when we didn’t have a cook for the whole group of children in the home.

And you mentioned you looked after some girls.  Approximately how many girls did you look after? --- I think it started off with 9 or 11.

Did it change? --- Then I think - and then about 13 and it fluctuated.  As they got older they transferred to the senior girls and as the children from the kindergarten were old enough for school they came up to the big girls, and likewise the boys I think, yes.

What age range would your girls have been? --- I’m not sure.  From 6 or 7 to about 11 or 12.  I think when they turned 12 they were transferred to the senior girls.”

625               Mrs Treloar offered innocent explanations to issues that to others had been sources of complaint.  The building that was called the gaol-house only got its name from the fact that the Army, before Retta Dixon acquired it, had used it as a gaol-house; and the girls’ dormitory was locked to keep out intruders because as, Mrs Treloar said, intruders had been a problem.  She told of the difficulties at Retta Dixon.  The toilets were a distance from the dormitory:  she or another missionary would have to escort the girls if there was a need to use them during the night.  There were only two showers and no hot water.

626               When asked about Miss Shankelton, Mrs Treloar said that she was referred to as “Lailee” by both the children and the staff; she thought that there was “a pretty good relationship” between Miss Shankelton and the other members of the staff and between Miss Shankelton and the children.  Mrs Treloar described Miss Shankelton as “a very quiet lady” but “approachable”:

“I don’t think I ever heard her raise her voice to any of the children.  She was very quiet and could command attention and have, you know, the children stop and listen.”

627               Mrs Treloar was then asked to tell what she remembered of Ms Spohn.  She answered that she could not remember anything spectacular about her, adding that she thought she “got on all right with the children”.  Her memories of Ms Dinham were, however, very strong:

“She looked after the babies in the nursery and was a very dedicated committed lady to looking after the babies.

What do you mean by that? --- Well, she gave her whole attention to the children.  We had some sick babies and she gave a lot of attention to the babies who needed to be fed, needed special attention in being fed at times because some of them were small and had to have special formula mixed for some of these children.”

628               Mrs Treloar’s evidence about the children’s daily routine was quite detailed and very informative.  She listed the duties and the work details that the children had to perform of a morning before going to school; she took obvious pride in the children’s appearance:

“Well, I personally washed my girls’ blouses and their uniforms and ironed them and I personally did most of their - washed most of their good clothes, their good frocks, and starched and ironed them, which I enjoyed doing.

And what happened when the children got home from school? What was the routine then? --- They’d come in and change their clothes.  Some would hop in and have a shower, others would flop on the bed for a while and chatter and then they’d change their clothes and go out and play.  Some would go out and play, some would read on their beds.”

629               According to Mrs Treloar, the children had toys to play with and there was, as well, a basketball court.  She also explained that it was Miss Shankelton’s practice to make sure that each child received a present on his or her birthday.  Mrs Treloar said that, for her girls, she was able to select a new frock for them as well as a toy.  Maxine Hill said that whilst the children were permitted to play normal children’s games, they were denied access to comics or the movies – although they did have occasional “slide” nights featuring the travels of one or other of the missionaries.  Asked about books, she replied that the only books that she could remember were “kids’ story books”.  That, in itself, was hardly surprising as it was, after all, a home for children.  More than once, Mrs Treloar referred to her love of reading.  She said that of an evening “I would read these stories to my girls” until it was time to put out the lights.  I found it difficult to reconcile Mrs Cubillo’s description of Retta Dixon Home as a place without love as I listened to and watched Mrs Treloar give her evidence.  When it was put to Mrs Treloar that the staff at Retta Dixon were not physically or emotionally affectionate towards the children, she said:

“I wouldn’t agree with that. We did love those children.  We – we tried to make that home as homely as possible.  We spent - I spent a lot of time with the girls I looked after and I was always there in the dormitory, and the other ladies were the same.  I - I don’t think that’s a - a true statement.

Were you physically affectionate towards your girls or the other children? --- I think so, but not overly.

What do you mean by that? --- Well, I didn’t hug and - I played with them, we played games.  I genuinely - I feel I genuinely loved them, and still do love the children I looked after.”

On the other hand, Mrs Treloar acknowledged that, because so much time was needed with the little ones, the older girls were neglected “in a sense, in that we weren’t able to meet their needs”.  Perhaps that statement offers the clue to understanding Mrs Cubillo’s memory of the Home.

630               Mrs Treloar said that there was a problem with bed wetting but when asked if she had ever punished a girl for it she replied:  “No.  I don’t think I ever did,  No”.  Mrs Hill also said that bed-wetting was rife in the Home but she said that the children would be punished for it.  She said that she would make her bed in the morning in an attempt to hide the fact that she had wet her bed.  She said:

“… and every time it happened with me I’d come home and I’d find my bed stripped and I knew Mummy Dinham had found out that I’d wet the bed and she used to belt me.”

631               Mrs Treloar was aware that some of the children had been placed at the Retta Dixon Home by their parents.  After all these years, she was still able to name some of them.  She also remembered the Phillip Creek children, naming twelve of the sixteen without hesitation.  Five of them, one of whom was Lorna Nelson, were in her care.  Mrs Treloar’s recollection was that the Phillip Creek children mixed in “pretty well with the other children”.  However, she also confirmed that the Phillip Creek children were not visited by their relatives and that they never left Retta Dixon on visits to their families.  On the other hand she claimed that there were no restrictions on family members visiting the children.

632               When asked to explain her personal attitude towards discipline, Mrs Treloar volunteered that:  “Sometimes I’d give them a clout over the shoulder or behind ...”.  She also said that on occasions “I might’ve taken my belt off … and give them a whack around the legs”.  Mrs Treloar had also seen both Ms Dinham and Miss Shankelton administer corporal punishment with a strap.  She did not, on the other hand, ever see Mr Walter, discipline a child.  It was specifically put to her that it had been alleged that Mr Walter lost control and hit Lorna Nelson with the buckle end of his belt.  Mrs Treloar said that she regarded him as “a very controlled person”.  Mrs Treloar agreed, during the course of her cross-examination, that Mr Walter “had very strong religious views” whereas she and Ms Dinham were “less fervent”.

633               Mrs Treloar had a recollection of Government officers visiting the Retta Dixon Home.  She recalled Mr Sweeney and Mr Giese, but her evidence on this subject was vague and in general terms.  It would not be possible to make a finding about the regularity of any such visits from what she was able to recall.  She could not remember Mr Dentith who was the Superintendent of the Bagot Reserve in 1954 and 1955.  She did however remember Mr Stan Matthews and his summary dismissal.  Some indication of her generosity of spirit emerged when she was able to find something good to say of that man.

634               In response to a question from her counsel, Mrs Cubillo told of an occasion when, as a resident at Retta Dixon Home, she was able to enjoy some contact with members of her extended family.  She could not identify when this event occurred, other than to say that it was in “the early 50’s”.  She said that Nat Williams, a Warumungu elder who was married to her sister Eileen, Engineer Jack, a Warlpiri elder, and some Aboriginal children came to the Bagot Reserve.  She described the incident in these terms:

“I was attempting to talk over the fence with Josephine Martin and a few other of my relatives, touching over the fence line, just touching hands because we were never touched by anybody and we were called away and cautioned by Ms Shankelton.  We snuck back over there because we wanted to have some information about our family.  We were sent away and given the strap by a male missionary.”

Mrs Cubillo was asked:

“Why did you want to touch your country people, your relations?”

She explained:

“They were my family.  They were the only people I loved and who loved me.  I never had any contact with anybody inside the home, no physical contact or had somebody place their hands to assure me that they cared for me.”

635               These passages from Mrs Cubillo’s evidence were significant in two competing respects.  On the one hand, it pointed to an unreasonable attitude of isolating the children from their Aboriginal family and friends.  On the other hand, it showed that some members of Mrs Cubillo’s extended family knew where she was living.  This feeling of isolation and lacking love and care was a recurring theme in Mrs Cubillo’s evidence.  Whether it was an objective fact, or whether it was only Mrs Cubillo’s subjective reaction to her institutionalisation, I am satisfied that Mrs Cubillo’s time at the Retta Dixon Home was an unhappy time.  She craved for, but did not receive, the love and affection that she needed.  Mrs Hill also said that relatives were not encouraged to visit the children.  She said that the children would talk to their relatives “over the fence” but if the missionaries saw them “we would get called away from the fence, get into trouble”.  That statement, of course, contradicted her earlier evidence that her father visited her and her sister.

636               In the letter dated 9 July 1954, from the Administrator of the Northern Territory, Mr Wise, to the Secretary, Department of Territories in Canberra, which was the letter that referred to the proposal that part Aboriginal children in institutions in the Darwin area should be removed to Gawler in South Australia, Mr Wise said that Miss Shankelton had advised him that her mission was opposed to the idea.  He wrote:

“Miss Shankelton went on to say that a number of inmates at the Home have parents residing in the Territory who followed the education and welfare of their children with interest, and desired to have access to them from time to time.”

The Administrator then wrote:

“It is agreed that there are a very limited number of children in this category.  However, the Acting Director of Native Affairs advises me that the greater number are children of parents who have no great interest in their children other than to be relieved of their personal responsibility.”

It is not clear to whom the Administrator was referring when he said “It is agreed”.  It might have been Miss Shankelton or it might have been the Acting Director of Native Affairs.  Nevertheless, it represents some evidence against the proposition that the Retta Dixon Home followed a policy of keeping the children segregated from their families.

637               The evidence does not permit me to make findings that would be based on the fact that Maisie did not visit Lorna whilst Lorna was a resident of the Retta Dixon Home.  On the one hand, I am not prepared to find that the Home had an active policy that would have prevented Maisie from visiting Lorna.  Mrs Cubillo’s evidence about the occasion when she talked through the fence to her relatives was not enough to justify such a conclusion.  Miss Shankelton may have thought that Lorna was talking to strangers.  On the other hand, it would be equally unfair to hold that Maisie did not visit Lorna because Maisie had lost interest in Lorna.  There was nothing in the evidence to suggest that Maisie’s failure to make contact was indicative of a lack of interest.

638               There was a second occasion when Mrs Cubillo had a far more meaningful contact with her relatives.  During the Christmas school holidays that preceded her last year at school, her cousin, Polly Kelly, a natural daughter of Maisie, obtained Miss Shankelton’s permission to have Lorna stay with her for a time.  As best as I can calculate, Lorna would have been then about seventeen years of age.  If that calculation is correct, it would mean that it would have been the 1955-1956 school holidays.  At Polly’s instigation, the two of them caught a commercial passenger bus in Darwin, intending to visit Lorna’s family in Tennant Creek.  The bus stopped at Banka Banka station to drop off some supplies and the girls got off the bus.  Lorna met her Aunts Elsie and Mary, her tribal sister Kathleen, another Aunt Mary and some other unnamed relatives.  Lorna was told by them that her mother, Maisie, was either at Phillip Creek or Tennant Creek.  This was both a happy and sad occasion for Lorna – it was happy because she had made contact with her relatives, but it was sad because of her inability to communicate with them; she had lost her native tongue and they could speak very little English.  Later, Lorna met up with her mother and, happy though the occasion was, it was made difficult because of the language problems; as Mrs Cubillo said, Maisie “only spoke limited English”.

639               Mrs Cubillo saw Maisie again before she returned to the Retta Dixon Home after spending some time in Tennant Creek with relatives.  Speaking of Maisie, Lorna said:

“I wanted to be with her, but I felt that my life had been severed from the time I was removed from Phillip Creek and I could not communicate adequately with my mother.”

640               Lorna never saw Maisie again; she heard later that she had died; she also thinks that Polly Kelly is dead.  The parties agreed that exhibit R36 was the death certificate for Maisie; it recorded that she died in the Tennant Creek Hospital on 7 January 1979 aged about eighty-eight years.  This meant that Mrs Cubillo, knowing where to find her surrogate mother, made no attempt at any further contact in the remaining twenty-three years of Maisie’s life.  I find that lack of contact inconsistent with Mrs Cubillo’s fundamental complaint of her forced separation from the woman whom she had believed to be her mother.

641               While she was at Tennant Creek, Mrs Cubillo stayed at the home of Peter and Louie Dixon.  She said that Peter was her tribal brother and Louie was his wife.  Louie worked as a domestic at the hospital and Peter was a stockman who was then absent working on a cattle station.  Both Peter and Louie spoke English as well as Warumungu and Warlpiri.  Mrs Cubillo also caught up with her tribal sister, Kathleen Napanangka.  Both Kathleen and her husband, who was, at the time of the visit, the head stockman on Banka Banka, spoke Pidgin English.  At this stage, Mrs Cubillo’s answers drifted away from the questions that were asked of her in cross-examination:

“You had no trouble communicating with her? --- She would understand me, yes.

Indeed, I think you mentioned that Kathleen …? --- But I did not have a conversation with Kathleen.

You didn’t speak to Kathleen? --- I hugged and cried with my relatives.”

642               Ultimately she acknowledged that she spoke to her sister, but only for about five minutes.  She also agreed that she had a short meeting with her other tribal sister, Eileen.  This evidence established that, as a teenager, she had made contact with three immediate members of her family as well as Maisie but, apparently, no attempt was made by any of them to keep Lorna with them.  Mrs Cubillo acknowledged that she also met up with some aunts either at Banka Banka or Phillip Creek; as she said:

“There were a host of relatives there and I don’t remember all their names.”

643               The people who Mrs Cubillo referred to as her siblings, Polly Kelly, Peter Dixon, Kathleen and Eileen (as well as Lorna Curtis and Arabelle Dixon) were, in fact, natural children of Maisie and, as such, were, in European terms, Mrs Cubillo’s first cousins.  When answering questions about their whereabouts, one matter of interest that came out of Mrs Cubillo’s answers was that none of them (so far as she was aware) was living a truly tribal life.  All had, to some extent, adapted to a style of western living.  For example Peter and Louie Dixon had a home in Tennant Creek and Kathleen and Eileen lived there too.  Polly Kelly lived in Darwin; the whereabouts of Lorna Curtis was not mentioned and Arabelle Dixon lived somewhere interstate.

644               Mrs Cubillo returned to Tennant Creek with her husband and children on another occasion.  The only indication of the date of this visit was that it was subsequent to Cyclone Tracy.  Mrs Cubillo said in cross-examination that she returned because she wanted to see her brother, Jack Gidjigurri, whom she described as “a tribal person”, and she wanted her children to meet him.  As she did not mention Maisie with respect to this visit, the probabilities are that it occurred after Maisie’s death in January 1979.

645               Mrs Cubillo made a trip with Olive Kennedy to Warrabri (now called Ali Currung) to visit Olive’s family.  She could not remember the year of the visit but she recalled that it was after Cyclone Tracy and that she took her two youngest children with her.  It is not clear from the evidence whether this trip preceded or succeeded the visit that she made with her husband.  Mrs Cubillo said that Ali Currung is about 100 to 150 kilometres south of Tennant Creek.  To get to it from Darwin, one travels south down the Stuart Highway through Banka Banka Station, Phillip Creek and Tennant Creek, turning off the Highway to the south east at Singleton.  Mrs Cubillo said that Olive Kennedy visited her family yearly and it was on one of those annual visits that Mrs Cubillo accompanied her.  It was put to Mrs Cubillo that Olive Kennedy was one of the children who, along with Mrs Cubillo, had been taken from Phillip Creek to the Retta Dixon Home.  As so often happened when an embarrassing question was put to her, Mrs Cubillo gave a disjointed answer.  On this occasion she replied:  “[A]nd she lived interstate in her adult life”.  The question was not repeated.  Mrs Cubillo saw the trap – if Olive Kennedy could regularly visit her family, why could Mrs Cubillo not visit hers.  Although her husband had a motor car, Mrs Cubillo could not drive.  In that regard she differed from Olive Kennedy.  But subject to that question of transport, Olive Kennedy’s earlier years had much in parallel with that of the young Lorna; yet in her early adult life, Olive had been able to establish and maintain contact with her family.  In fact, Mrs Cubillo acknowledged that on the occasion of this visit, they stopped at Tennant Creek on the way back to Darwin and she visited her brother Jack.

646               Mrs Barbara Cummings was the author of a book Take this child – from Kahlin Compound to the Retta Dixon Children’s Home, Canberra, Aboriginal Studies Press, 1990 – a work that dealt with “the Stolen Generation”.  Both the author and the book were mentioned from time to time during the course of the trial, but Mrs Cummings did not give evidence nor was the book received into evidence.  Although she was not one of the Phillip Creek children, Mrs Cummings was an inmate of the Retta Dixon Home at the same time as Mrs Cubillo.  Mrs Cubillo assisted Mrs Cummings in her research for her book.  For that purpose, Mrs Cubillo sought and was granted leave of absence from her work in December 1987 and January 1988.  As part of her assistance to Mrs Cummings, Mrs Cubillo accompanied her to Phillip Creek to look at the old site of the Settlement because, as Mrs Cubillo said, “my countrymen and relatives did not want to talk to others.  [T]hey only wanted to talk with their own relatives and that was me”.  Asked to describe how she assisted Mrs Cummings (in addition to the visit to Phillip Creek) Mrs Cubillo said:

“I worked with her just telling her about the children at Retta Dixon, my relations, and who they were and that sort of thing.”

This passage in Mrs Cubillo’s evidence was another indicator of her ability to have a measure of contact with the members of her extended family.

647               Mrs Cubillo’s counsel asked her during her examination in chief about her attitude to participating in tribal life.  He commenced his question on this subject by having Mrs Cubillo refer back to the occasions when she had visited Tennant Creek:

“How do you feel when you go to Tennant Creek? --- I feel a sense of sadness and loss.  I don’t know where I fit in.  I feel within myself that my ties have been severed from my family during the time of my removal from Phillip Creek.

Have you made any attempts yourself to try and get back or find out about Aboriginal culture or tradition? --- I – I only know little things about my Aboriginal life but I don’t – I have no real knowledge about my tribal life.

HIS HONOUR           I’m sorry, I couldn’t hear your answer, Mrs Cubillo? -- I don’t have a real knowledge of my tribal life, just the little basic things about my tribal life, your Honour.

MR RUSH:    would you like to find out more? --- Yes, I would.”

This subject was taken up in cross-examination by Ms Hollingworth, counsel for the Commonwealth, who asked Mrs Cubillo:

“What attempts have you made to find out more about your tribal life in the time since you left Retta Dixon?”

Mrs Cubillo answered that question by saying:

“I haven’t made any attempts to learn about my Aboriginal culture, because I live in a different world to them. … and I grew up in a different world to them.”

648               It was easy to accept and understand that Mrs Cubillo was living in a different world, but her answer did not address adequately the question that had been asked of her.  She had said that she would like to find out more about her tribal life.  It did not follow, as a matter of logic, that living in a different world prevented her from finding out more about her tribal life.  It might make it more difficult; after all she was living in Darwin with a job and a family and her relatives were far away in the Tennant Creek area.  However, one would expect some effort to be made if, as she said, she wanted to know more about her tribal life.

649               During her cross-examination, it was put to Mrs Cubillo that, by the time she left the Retta Dixon Home, having earlier gone back to Tennant Creek, she knew where to find her family and her relatives and she was “free to choose” where she went.  This proposition lead to a determined interchange between Mrs Cubillo and her cross-examiner:

“I was not free to go wherever I went.  I was in the home until I was placed with a couple to be their housemaid.

But after you left the home, once you were no longer in the control of the home, you were an adult, you were free to go where you wanted, weren’t you? --- Let me tell you, Ms Hollingworth, we were inexperienced in life.  We had nobody.  We were just sent out the gate to this world that we weren’t familiar with and that was a scary fact.

You knew where your family were and you knew how to get to see them; is that not the case, Mrs Cubillo? --- Are you saying that I had the means to go visit my family?

Well, you could have gone and asked Polly Kelly to take you down again? --- I had no money, no means and people like you removed me.”

650               This passage from Mrs Cubillo’s evidence disclosed many things that have affected me in my attempts to evaluate her evidence.  First, there was the obvious and understandable bitterness towards authority; secondly, there was the feeling of frustration that a person, torn between two cultures, must have felt – a feeling that could only be truly appreciated by one who had suffered the same experience.  Mrs Cubillo told a story of loss and despair as a result of her being sent to the Retta Dixon Home.  She said to her counsel:

“I’ve lived in despair.  I’ve been overawed with pain and anxiety and that, I’m still anxious to this day and many time I suffered in silence because there was no one there to help me and I still suffer to this day.”

Later she said:

“I feel as though I’m defeated.  Sometimes I wonder what was it worth.  I believe that I was torn away from a loving family into a life with no love and that was the life I lived in the homes.”

Thirdly, there was her independence of spirit.  Mrs Cubillo was not a person who was cowed by authority or overwhelmed by the formalism of the Court room.  She was one who was prepared to stand and fight for her cause.

651               It had earlier been put to Mrs Cubillo in cross-examination that once she left the Retta Dixon Home, she knew where to find her family.  Her answer “No, I didn’t know where to find my family” was wrong.  She knew from her trip to Tennant Creek with Polly Kelly, even before she left Retta Dixon Home, where her family was located.  No reason was advanced during the course of the hearing that would explain why she did not stay with her family instead of going back to Darwin or why, when she left the Retta Dixon Home, she did not make any attempt to return to her relatives in the Tennant Creek area.  It was put to Mrs Cubillo in cross-examination that she would have had the know-how to get to Tennant Creek if she wanted to join her family.  She denied this:

“But in any event, you knew whilst you were at Retta Dixon that there was a bus you could get on, a Tuitt’s bus, that would go down to Tennant Creek? --- I did not know of any bus.  I was on a visit to my sister’s place and she made these arrangements;  I had no knowledge about any way of getting back to see my family.”

The sister to whom she referred was Polly Kelly.  Even if her answer correctly recorded her state of knowledge at that time (and it may well have for, after all, she was only seventeen and had led a very cloistered life) it did not account for her failure to enlist the aid of Polly who might have helped her return to Tennant Creek.  In making that observation, I have made allowance for the fact that she would have lost her tribal or bush life and would have become indoctrinated into a form of western culture but, many of her relatives had given up pure tribal living for aspects of urban or town life.  That does not mean that they had given up their Aboriginal culture – that is an entirely different matter.  The limited issue at this stage, is to point out that if Mrs Cubillo had wished to return to her Aboriginal way of life, it would not have meant forsaking all the western amenities to which she may have become accustomed.  She could have investigated the possibility of living (say) in Tennant Creek and with the assistance of her relatives she might have been able, slowly, to embrace her Aboriginal culture.  It must not be overlooked that as time went by, her chances of returning to her family diminished, first because of her marriage and then because of her six children and her need to support her husband and her family.  They are not matters that can be put to one side, but they are factors for which no one other than Mrs Cubillo must take responsibility.

652               Is it therefore true to say that, from the time Mrs Cubillo left Retta Dixon, and perhaps, even earlier, bearing in mind her visit to Tennant Creek with Polly Kelly, she was a free agent to make a choice for her future life?  Is it true to say that she could have, then, and at any time thereafter, if she had wished to do so, returned to Phillip Creek and to her Aboriginal community?  By the time she left the Retta Dixon Home, she had lost her native language, she did not have the skills of a young woman who had been brought up in a traditional Aboriginal community and she had acquired a western style of living.  On the other hand, some of the members of her extended family, to her knowledge, had partially moved away from a traditional life; for example, some had taken up residence in conventional European housing in Tennant Creek.  Although the subject was not addressed by counsel in evidence, the addresses that were given by Kathleen and Eileen Napanangka suggested that they live in conventional European homes in Tennant Creek.  On the other hand Bunny and Annie Napurrula gave their address as “House 26, Mulga Camp, Tennant Creek”.  I do not know what description would most aptly describe those premises.

653               Mr Penhall was asked, during the course of his evidence in chief, whether he had, during his time as a patrol officer observed any change “in the Aboriginals in the Central Australia area”.  He gave a lengthy answer but it warrants being set out in full because it showed that the Aboriginal people, while not abandoning their culture, were interested in benefiting from some aspects of western culture.  He said:

“Yeah, well they were becoming, I suppose, to use a modern term, they were becoming more sophisticated.  They were wanting more of the – I suppose the luxuries of the European.  They also were not going on walkabout like they used to.  They used to more or less stay in a particular area; they wouldn’t go very far away.  They’d quite often stick to their stations and stay there until perhaps a Christmas break would come along and the station would take them out to a waterhole or to a bore and leave them rations and let them have their corroborees and do their rituals and that sort of thing while they were on holidays.  But that was looked on more as a holiday, after working for about nine months on the station when they’d have three months off.  Well, that was the vacation period when they did whatever they wished.  They – they – also, of course, as I said, they weren’t that keen on walking any more because if there was a motorcar around to give them a lift, they’d be in it.”

654               It is not to be thought that the choice confronting Lorna, as a young woman of eighteen years, was necessarily limited to a return to life in the bush or to the acceptance of a western lifestyle.  There was the possibility of the middle ground where, from a western base, she began to learn her Aboriginal culture and language.  Nor should it be thought that she was compelled to make an immediate decision; if she wanted to resume, in whole or in part, her Aboriginal culture and lifestyle, she would have had an opportunity to do so gradually at any time.  The reality of the situation was that the choice became progressively more remote as she continued to live in a conventional western style atmosphere.  Little was said about her husband’s background, save that he was a Filipino.  But an urban life with a husband and children probably made a return to Aboriginal culture an unrealistic option for Lorna.  It is not possible, in my opinion, merely to say that she was a free agent and that she chose western civilisation in preference to returning to her Aboriginal culture; since the age of eight, and, perhaps earlier, she had been indoctrinated into a European lifestyle.  Those were her formative years; they were the years in which she had total exposure to only one lifestyle.  She was taught nothing about her Aboriginal background and had no opportunity to keep in touch with it.  After almost ten years at Retta Dixon, where she lived, ate, slept and cared for herself as a white girl, it would be unrealistic to expect that she could, without active assistance from family members, return to her former Aboriginal life.

655               However, that conclusion does not end the matter. There are still several questions to be answered.  So far, I have only concluded that, in her personal circumstances, it would have been unrealistic to expect the young teenager, Lorna, to return to a traditional Aboriginal life when she left Retta Dixon.  The next question is:  did she then want to return?  Another question is:  does she now want to return?  A third and significant question in this case is:  by not being able to return, if that be the case, has she suffered a loss and if so, what is it that she has lost?  The answer to that last question is, of course, her Aboriginal culture, but what does she know of Aboriginal culture so that she can give an explanation of her loss.  And is her sense of loss to be set off by her acquisition of western culture?  One answer to that question would be to say that western culture was forced on her against her will and that she is now, because of that force, compelled to live with it – not because it was her free choice but because her time in Retta Dixon meant that she had no choice.

656               I find it difficult to accept Mrs Cubillo’s proposition that she would like to find out more about her Aboriginality.  In my opinion, Mrs Cubillo has had the opportunity since she was about seventeen, if she had wished to take it, to investigate whether she wanted to return to the tribal life to which she originally belonged or, as would more likely be the case, to an Aboriginal life within an Aboriginal community that enjoyed fundamental aspects of western civilisation.  But she has elected to stay wholly in an urban environment:  an environment that commenced when she left the Retta Dixon Home and which was cemented with her marriage and her entry into the western work force.  I reject the proposition that she was a free agent when she left Retta Dixon and, that as a free agent, she chose western culture over Aboriginal culture.  That would be an unrealistic expectation for a young girl in Lorna’s position.  However, I am not satisfied that, at that same time, she wanted to return to her Aboriginal community.  If it had then been her wish to have some contact with her Aboriginal family, there would have been opportunities that she could have made for herself – but she did nothing.

657               I accept the proposition that her removal and her continued presence at Retta Dixon was responsible for her loss of her Aboriginal culture and her native tongue.  I also accept that her time at Retta Dixon would have so conditioned her to a western lifestyle that it would have been difficult, and almost impossible, to return to tribal life in its purest form.  In any case that would not have been the proper test – as I have said, the limited evidence of her contact with her relatives suggested that they were not then living a total tribal life.  Some, at least, were living in western style accommodation with some consequential exposure to and usage of western consumer facilities.  Her stated wish that she wanted to know more about her culture and her Aboriginal life did not necessitate a return to the bush with all the attendant differences that such a move would entail.  Her wishes could have been achieved, at least to some degree, by relocating herself – or later by relocating herself and her family, so that she was living in closer proximity to her relatives.  That would not have been a complete answer to her losses if, indeed she was suffering a sense of loss, but it would have gone some of the way towards minimising them.

658               Mrs Cubillo made some very serious accusations against Mr Des Walter, a missionary who worked at the Retta Dixon Home while Mrs Cubillo was residing there.  Mr Walter, who gave evidence for the defence, denied all her accusations of impropriety.

659               Mr Walter was born in 1930; he was aged sixty-nine at the time when he gave his evidence; he described himself as a retired motor mechanic.  As a young man, whilst still undertaking his apprenticeship, he visited an orphanage in Brisbane on Saturdays to help with games for the children.  He was, at that time, a practising member of a religious body:  the Brethren Assembly.  He was also involved with a Christian interdenominational evangelical organisation known as “Open Air Campaigners”.  In 1948, Mr Walter joined the Royal Australian Airforce and, a year or so later, he was posted to Darwin.  In Darwin he attended services of another church and through those services he met Mr Streeton and became interested in the work of the Aborigines Inland Mission.  He said that he became particularly interested in the Aboriginal people even though he had had no previous contact with them.  He visited the Retta Dixon Home and met Miss Shankelton.  In time, he became an active unpaid volunteer for Retta Dixon in various capacities, including that of a preacher as well as caring for the children on excursions.

660               Mr Walter said that when he arrived in Darwin, the city was still suffering from the effects of the Japanese bombing during the Second World War.  He said that “living conditions were fairly primitive.  [T]here were lots of homes that were just galvanised iron”.  Asked about Retta Dixon, he said that Retta Dixon, at that time, was no worse than the general appearance and conditions of living in Darwin.

661               Mr Walter remained in Darwin until September 1951 when his term of engagement with the Air Force concluded.  He said that he and his wife, whom he had married in 1952, decided that they wanted to do missionary work with the Aboriginal people in the Northern Territory and, with that in mind, he contacted the Aborigines Inland Mission at Singleton and was duly accepted.  Initially, they were posted to Katherine where Mr Streeton was stationed.  They were still based in Katherine on 6 July 1954 when their first child was born.  Shortly thereafter, following a request from Miss Shankelton, Mr and Mrs Walter were posted to the Retta Dixon Home in Darwin.  At Retta Dixon, Mr Walter was placed in charge of the boys’ dormitory.  At that time he thought that there would have been about forty boys and fifty girls at the Retta Dixon Home as well as three or four single mothers.  On 3 August 1954 Miss Shankelton wrote to the Director of the Native Affairs Branch advising that “Mr Desmond Walter, missionary and motor mechanic, with his wife, Audrey Walter, fully trained hospital sister, have been transferred, temporarily, to the staff of the Home”.  Mr and Mrs Walter left the Retta Dixon Home in 1955 and their resignation from the Aborigines Inland Mission of Australia was minuted on 12 October of that year.  He said that his resignation was because of “spiritual issues which I encountered during the course of the ministry”.  He denied that he was dismissed, claiming that he left voluntarily.  According to the Reverend Long, Mr Walter gave, as his reason for his resignation, his disapproval of a woman (presumably Miss Shankelton) being in charge of a ministry.

662               Mr Walter agreed that he believed in corporal punishment.  As he said in one of his early answers in cross-examination:

“I believe that it was a form of punishment that brought correction to children.”

He also agreed that he administered corporal punishment to girls at Retta Dixon at the request of the female missionaries.  He was asked to name those missionaries; he replied:

“Miss Spohn, Miss Dinham, Miss Shankelton, Miss Gadd, Miss South.”

 

Mrs Treloar (ie Miss South) disagreed; she said that she would have sent her girls to Miss Shankelton for punishment.  The name of Miss Jocelyn Gadd was mentioned from time to time during the trial but no evidence was led about her.  It is not known whether she is alive or dead.

663               His form of corporal punishment was, so he said, three or four hits with a belt.  It was put to him in cross-examination that his form of retribution and chastisement was “brutal” and “vicious” but he denied this.  He likewise denied that he used his fists and boots in administering corporal punishment.  He denied that he ever lost his temper.  He was then asked:

“What’s the Bible say about the administration of retribution? --- It says that foolishness is bound up in the heart of a child and the rod of correction will drive it far from him.

What does that mean? --- It simply means that the rod will correct a person and bring them back onto a - a right path - when it’s administered in love.”

The mere written recitation of those answers does not capture the air of superior rectitude with which they were delivered.

664               Before considering the details of the accusations that Mrs Cubillo made against Mr Walter, I propose to deal with the allegations that were made against Mr Walter from other sources.  Mr Dentith was, in 1954, the Superintendent in charge of the Bagot Reserve for Aboriginals.  Mr Walter claimed that he had a clash with Mr Dentith not long after his arrival in Darwin in July of that year, and that, as a result, Mr Dentith exhibited strong animosity toward Mr Walter.  Mr Walter’s explanation of the incident that gave rise to this alleged animosity was to the effect that there had been a “riot” involving a group of Aboriginals in the Bagot compound which Mr Walter succeeded in quelling after Mr Dentith had failed in his attempt to do so.  It was Mr Walter’s evidence that Mr Dentith:

“… got very, very upset and virtually abused me; told me I had no right to be there.”

During his examination in chief, Mr Walter was shown a copy of a report dated 27 July 1954 from Mr Dentith to Mr McCaffrey, the Acting Director of Native Affairs.  In that report, Mr Dentith set out particulars of certain information that he had received about Mr Walter and Mr Stanley Matthews, both of whom were Retta Dixon missionaries.  It was claimed that they had administered exceptionally severe punishment to three young part Aboriginal boys.  According to the report, Mr Dentith recorded that he and Mr McCaffrey attended upon Miss Shankelton and informed her of the information that had been conveyed to Mr McCaffrey.  It is not totally clear, but it would seem that the report inferred that the punishment was administered during the night of Wednesday, 21 July 1954, that Mr Walter was involved in the administration of the punishment, that one boy was beaten with a tennis racquet and that another “had an old scar previously given by Matthews bleeding and broken”.  Mr Dentith, in the concluding section of his report, wrote:

“The only report I have had since the incident is that Mr D Watters (sic) is just as bad at punishing as Matthews but the boys concerned said they will be clubbing together to “bash” him up if he hits any of them.”

It is agreed that the reference to “Watters” is a reference to Mr Walter.

665               Mr McCaffrey submitted a copy of Mr Dentith’s report to the Administrator under cover of his report of 28 July 1954.  The first part of that report dealt with Mr Matthews.  Mr McCaffrey wrote that it was the third occasion that he had received complaints about Matthews’ brutality; he advised the Administrator that he had informed Miss Shankelton “I required Mr Matthews to be off the Aboriginal Reserve within 48 hours”.  Mr McCaffrey had, on an earlier occasion, written to the Administrator criticising the staff at the Retta Dixon Home in general and referring specifically to one unnamed “adult male assistant”.  (See the report of Mr McCaffrey dated 3 February 1954).  Of him, Mr McCaffrey wrote:

“I have observed him displaying an overbearing manner and dealing out brutal chastisement on the inmates with a rope or strap.”

As Mr McCaffrey had stated in his report of 28 July 1954 that he had observed Mr Matthews “assault three boys, none of them older than about seven” by striking them “with a piece of knotted two-inch diameter rope”, it is reasonable to infer and I find that Mr McCaffrey was referring to Mr Matthews when he described the conduct of the unnamed “adult male assistant”.

666               Mr McCaffrey also complained about Miss Shankelton in his letter to the Administrator.  He said that after the incident in which Mr Matthews had allegedly assaulted three boys “with a piece of knotted two-inch diameter rope”, he had extracted from Miss Shankelton an undertaking “that Mr Matthews would not be permitted to punish children in the future”.  Mr McCaffrey reported to the Administrator that at his interview with Miss Shankelton on 21 July 1954 “she admitted that she has not carried out the undertaking given me regarding Mr Matthews”.

667               The Reverend Long did not have a clear memory of some of the missionaries, such as Ms Dinham and Ms Spohn, but he did remember Stan Matthews.  He said that Mr Matthews had first been engaged as a maintenance man as distinct from being a missionary.  He recalled that Miss Shankelton rang him to inform him that Mr Matthews had been dismissed from the Retta Dixon Home because of what she described as “excessive corporal punishment”.  Mr Long met Mr and Mrs Matthews in Sydney saying of them:

“He came back to us some time later and wanted to be accepted as missionaries (sic).  I felt we ought to give them a second chance and help them if we possibly could …”

He said that they received counselling:  that they went to Singleton to the Bible Institute where they undertook a course of studies and that ultimately, they were assigned to missions, first in Katherine and later at Normanton.  Mr Long said that he only knew of the incident that led to Mr Matthews’ dismissal from what Mr Matthews told him and from what Miss Shankelton wrote him.  Nevertheless, even though he talked of provocation, Mr Long acknowledged that he felt that the conduct of Mr Matthews “was excessive”.  During the course of his cross-examination, the contents of Mr Dentith’s report to Mr McCaffrey dated 27 July 1954, were put before Mr Long.  He was referred to the section in the report where it was claimed that the punishment was so severe that an old scar was bleeding and broken.  On the assumption that the accusation was accurate, Mr Long had no hesitation in saying that he would regret such an incident.  He was next referred to the section in the report which claimed that it was the third occasion upon which Mr Matthews had administered cruel punishment in the past few months.  Once again, assuming such an accusation to be accurate, Mr Long was embarrassed to admit that:

“Well, he – he was asked to leave, subsequently to this, and I – I have to agree that it was unfortunate that he did what he did.”

668               After dealing with Mr Matthews, Mr McCaffrey in his report of 28 July 1954 then moved to Mr Walter.  He wrote of him:

“I now have another problem in Mr. Walters, (sic) who has taken upon himself the role of Judge and Chief Whipper.  His activities will be closely watched, and although Miss Shankelton gave undertakings in this regard, I am afraid I cannot accept her word in future.”

669               These reports were put before Mr Walter; he denied their contents.  He said that neither the contents of those reports nor the subject matters of the reports had ever been brought to his attention prior to his preparation to give evidence in this trial.  He said that he knew nothing about the use of a tennis racquet as a means of punishment and that he had no recollection of being present when Mr Matthews administered punishment.  He believed that he and his wife would have still been in Katherine on 21 July.  Miss Shankelton’s letter to the Native Affairs Branch giving notice of his and his wife’s transfer to the Retta Dixon Home was dated 3 August.  However, it was a report of information “for the month ended 31 July 1954”.  Mr and Mrs Walter could have been at Retta Dixon Home on 21 July.  Mr Walter agreed, but only after being pressed, that he knew Mr Matthews slightly.  They were, so he said, together at Retta Dixon for a short time.  He conceded that he knew that Mr Matthews had been dismissed and that his dismissal had been brought about because of his administration of corporal punishment.

670               Mr Long had a recollection of Mr Des Walter, but his evidence about him was not very detailed.  He recalled that he had written Mr McCaffrey on 2 November 1954 proposing that Mr Walter be accepted as Acting Superintendent whilst Miss Shankelton was on leave.  He also recalled that Mr McCaffrey replied, by letter dated 24 November 1954 objecting to Mr Walter’s proposed appointment.  Whilst he recalled acceding to the stand taken by Mr McCaffrey, Mr Long was not able to recall whether he became aware of the reasons for Mr McCaffrey’s opposition to Mr Walter.  When asked, during his evidence in chief, why the Aborigines Inland Mission had accepted Mr McCaffrey’s opposition to Mr Walter’s appointment, Mr Long replied:

“Well, we could hardly go across to go against the – wishes of the – stated wishes of the Welfare Department.”

Asked to explain that answer he added:

“Well, the – the home was still under the direction of the Welfare Department and if they told us that they weren’t happy about such an appointment I – I think we would have to take notice of it.”

Although Mr Long went on to say that he did not consider that the Welfare Department had “much of a say” with regard to the appointment of staff at lower levels, nevertheless his reaction to Mr McCaffrey’s stance indicates an acknowledgment on the part of Mr Long that the Welfare Department was in a position of some dominance.

671               The memorandum from Mr Dentith dated 27 October 1954 to the District Superintendent, Native Affairs Branch, Mr Sweeney (“the Dentith report”) was shown to Mr Long during the course of his cross-examination.  He said that he had no prior knowledge of the incident that was the subject of the report, but he agreed that if it were true, then the information, as stated by Mr McCaffrey, would have wholly justified Mr McCaffrey’s opposition to Mr Walter being nominated as the Acting Superintendent of the Retta Dixon Home during the absence of Miss Shankelton.

672               Mr Dentith wrote in the Dentith report:

“… a number of children aged about 12 years ran towards me shouting ‘Quick Mr Dentith, Mr Waters (sic) has gone mad, he is breaking Norman A‑-’s arm and kicking him, he won’t stop for Miss Shankelton’.”

Mr Dentith said that he followed the children to the boys’ dormitory at the Retta Dixon Home.  According to the Dentith report, the attack had allegedly resulted from Norman A-- complaining about Mr Walter to Mr McCaffrey; however, the reason for the boy’s report was not stated.  Mr Walter claimed that the report by Mr Dentith concerning his treatment of Norman A-- on 27 October 1954 was “a complete fabrication”.  Mr Walter’s version of the incident was to this effect:  some boys had told him that Norman A-- “was going to hit me with a brick”.  He said that he “pre-empted the whole thing” by approaching the boy and disarming him.  He said that he then held him down with his knee in the boy’s back until the boy “admitted that he would not carry on any further with his ideas of hurting me or disrupting the dormitory”.  Mr Walter said that he asked, but Norman would not say, why he had intended to attack him.  According to Mr Walter, neither Mr Dentith nor Miss Shankelton was present at any time during this incident.  The Commonwealth was aware, from the contents of the Dentith report, that there was an allegation that Mrs Walter, in addition to Miss Shankelton, was present during this attack on Norman A--.  Mr Dentith is dead, as is Miss Shankelton, but Mrs Walter is still alive.  I regard it as highly significant that the Commonwealth did not call her and did not offer any explanation for not calling her.

673               Mr Meagher QC for the Commonwealth, submitted that I should have no regard to the contents of the Dentith report.  Mr Walter had refuted it on oath, alleging that Mr Dentith was biased.  There was no evidence that pointed to Mr Giese, Mr McCaffrey or Miss Shankelton having acted on it:  nor was there any evidence of disciplinary action having been taken against Mr Walter.  Perhaps Mr Meagher was relying on what Lord Mildew said in Fox v Mayor of Swindon:  AP Herbert, Uncommon Law, London:  Eyre Methuen, 1935 at 59.

674               It must be accepted that the author of the Dentith report was not available for cross-examination and that the allegations in it have been denied on oath.  But that is not the end of the matter.  Weight can be attached to the contemporaneity of the document and to the fact that Mr Dentith and Mr McCaffrey had earlier expressed concerns about Mr Walter administering corporal punishment.  Then that evidence is the more readily acceptable by the failure of the Commonwealth to call Mrs Walter to support her husband’s denials.  There was no evidence to show that Mrs Cubillo was in any way affected by Mr Walter’s conduct on that occasion, but my acceptance of the contents of the Dentith report and my adverse finding against Mr Walter reflected badly on his credibility when the time came to consider his denials of Mrs Cubillo’s allegations.

675               Mrs Cubillo explained that as a teenager, she did housework in the home of Mr and Mrs Walter.  At first she liked and trusted Mr Walter, but after a while she became uneasy because of the way she found him looking at her.  She told Miss Shankelton that she did not want to work for Mr and Mrs Walter any more.  However, she did not attempt to explain her reasons and, so she said, Miss Shankelton did not ask her.  That was her first complaint against him.  Mrs Cubillo agreed that, on the particular occasion when she realised that Mr Walter was looking at her, he did nothing and said nothing that was either improper or offensive; clearly, it was a perception that a young girl felt; but whether it was or was not justifiable cannot be tested.  She felt compromised, but one must allow for the possibility that she unnecessarily took fright or, perhaps, that she misread the situation.

676               Mr Walter agreed that Lorna did domestic work for his wife for a short time but it was his evidence that she ceased because his wife no longer needed any assistance.  He denied that he misbehaved in any way while Lorna was in his home.  Even though I accept Mrs Cubillo’s evidence about her reactions towards Mr Walter, it does not mean that I accept that her reactions were justified.  I could not make an adverse finding against Mr Walter based on a young girl’s feeling of unease.  However, her decision to refuse to work any further for Mr and Mrs Walter shows that her perception of Mr Walter was then heavily and adversely affected, a factor that has to be remembered when considering the next incident.

677               On another occasion (it is not clear whether this occurred before or after she stopped working for the Walters, but in all probability it was after), Mr Walter drove her to basketball.  Normally Miss Shankelton drove her but on this occasion, Miss Shankelton arranged for Mr Walter to do it.  It was Mrs Cubillo’s evidence that on the way, Mr Walter “placed his hand on my leg up to my thigh”.  She said that she began to weep and he moved his hand away.  Miss Shankelton had also arranged for Mr Walter to pick Lorna up after the basketball game, but she said that she managed to get a ride back to the Retta Dixon Home with Mr Fong Lim, her basketball coach.  Mr Fong Lim died in 1990.  She never told Miss Shankelton (or anyone else) what had happened.  She said that she was punished for not waiting for Mr Walter to take her home; she said that she was “flogged by Mr Walter”.  Not only did Mr Walter deny putting his hand on Lorna’s leg, he denied ever having driven her or any young Retta Dixon girl alone in a car.  He said that Miss Shankelton would never have permitted a young girl to be alone in the company of a male missionary.  With the death of Miss Shankelton and Mr Fong Lim, that explanation cannot be tested.  My reasons for preferring the evidence of Mrs Cubillo in preference to the evidence of Mr Walter are stated later in these reasons.  At this stage, I simply state that I am prepared to accept that Lorna was in the car alone with Mr Walter and that something happened to upset her.  Unlike the first incident, it is not possible to explain the incident away on the basis that Lorna misunderstood what was happening; she was in no doubt.  She said that he placed his hand on the upper part of her leg and that she started to cry.  I remain conscious of the test in Briginshaw, but in this area I find that measure of satisfaction in Mrs Cubillo’s evidence and presentation which allows me to say that I accept her evidence on the subject in preference to that of Mr Walter.  He did not impress me as a witness.  Although he carried no onus, I found myself unable to accept his denial.

678               There was a third incident involving Mr Walter.  The date was not identified but it was subsequent to the incident in the car.  It occurred on a Sunday when a party of girls from the Retta Dixon Home were picnicking at Berry Springs.  They were accompanied by Mr and Mrs Walter, Ms Spohn and another female missionary.  According to Mrs Cubillo, she and some other girls, notwithstanding directions to the contrary, left their camp and played in a nearby creek.  Mr Walter found out.  According to Mrs Cubillo he became very angry, hitting her with the buckle end of a strap.  She said that it was such a severe beating that it lacerated her hands, face and breast, partially severing one of her nipples.  Mrs Cubillo said that she lashed out and struck or pushed Mr Walter who fell over.  Thereafter she and some other girls ran away and hitched a ride back to Darwin, where she went to the home of her tribal sister, Polly Kelly.  It was Mrs Cubillo’s evidence that she and the other girls were fortunate in chancing upon a Mr Kentish who gave them a lift to Darwin in his motor car.  Mr Kentish was not available to give evidence; he died over twenty years ago.

679               Mrs Cubillo named the six other girls who went down to the creek with her.  Four of them, Josephine Martin, Olive Kennedy, Ruth Crosby and Joyce Croft are now dead and Vera Doran is seriously ill.  The remaining girl was the witness, Mai Knight (now Mai Katona).

680               Mrs Katona gave a detailed summary of the events at Berry Springs that led to Mr Walter beating Lorna.  After describing how the group of girls had wandered off looking for bush tucker and to wet their heads with water from the creek because it was a hot day, Mrs Katona’s evidence continued:

“When you returned to the camp what happened? --- A male missionary by the name of Mr Walter came out and asked us where we’d been.  And we said that we’d just gone for a walk and he said, ‘Have you been swimming?’ because on Sundays we weren’t allowed to do these sorts of activities.  We said, ‘No, we hadn’t been swimming’.

Was there anyone who was speaking for the group? --- Yes, Lorna.

When she said that you hadn’t been swimming what did Mr Walter do? --- He said we were lying and he got the strap and started, as I recall, hitting and then he turned to Lorna and started hitting her, which was quite frightening to experience.

Why was that? --- I’m not sure why he turned to Lorna, but maybe because she was older or she seemed to be responsible.

You said it was frightening to experience, why was it frightening? --- Why was it frightening?  Because it almost – well, it was a frenzied attack on a defenceless person.  I mean, that’s quite frightening, any violent action, when you’re a child and especially when you can’t defend yourself.

How did the attack end? --- Eventually Lorna pushed him away and he fell over onto – I can’t recall whether it was boxes or some other items, but she fell over, which seemed to have stopped him from beating her.

And at that time can you describe Lorna’s appearance? --- Yes, there was blood everywhere, on her shirt and down the side of her face.

Did you remain at the camp? --- No.

What did you do? --- We regrouped and left, we walked to the road, to the highway.

Again, who is we in this context? --- I can’t remember the girls, but there were several of us and Lorna and I were in that.”

681               According to Mrs Katona, Lorna left the group and went to her sister’s.  The rest of the girls went back to the Retta Dixon Home and told Miss Shankelton what had happened.

682               Mrs Maxine Hill was in the party of girls who went on the picnic to Berry Springs under the supervision of Mr Walter.  She knew that a group of girls, including L