(Action Nos 14 and 21 of 1996)


In accordance with the practice of the Federal Court in certain cases of public interest, a brief summary has been prepared to accompany the reasons for judgment that are to be delivered today.  This summary is intended to assist in understanding the principal conclusions that have been reached by the Court; it is not intended to take the place of the official reasons which comprise almost 700 pages

O’Loughlin J

11 August 2000




DG 14 OF 1996












BETWEEN:                  PETER GUNNER                                                    DG 21 OF 1996



AND:                             COMMONWEALTH OF AUSTRALIA







11 AUGUST 2000




1                     The applicants, Mrs Lorna Cubillo and Mr Peter Gunner, are said to be members of “the Stolen Generation”.  Neither the evidence in this trial, nor the reasons for judgment, deny the existence of “the Stolen Generation”.  Numerous writings tell tragically of a distressing past.  But this trial has focussed primarily on the personal histories of two people:  Lorna Cubillo and Peter Gunner.  They have claimed that they, as young children, were forcibly removed from their families by employees of the Commonwealth Government.

2                     Much has appeared in the media about the need for a national apology to the members of “the Stolen Generation”.  I must emphasise that the question of such an apology was not an issue that was raised in this case by either Mrs Cubillo or by Mr Gunner.  I have not therefore addressed that subject.

3                     In order to understand the decisions at which I have arrived, I must make mention of the state of the law as it existed at the time when Mrs Cubillo and Mr Gunner were removed from their families.

4                     Section 6 of the Aboriginals Ordinance permitted the Director of Native Affairs, a Commonwealth public servant, to undertake the care, custody and control of a part Aboriginal child if, in the Director’s opinion, it was necessary or desirable in the interests of the child to take the child into care.  The law permitted the Director to do that against the express wishes of the child’s family.

5                     That is where the battle lines were drawn in these two cases.  Both Mrs Cubillo and Mr Gunner acknowledged that the Director had this power of removal but, so they claimed, he had not used his power properly – he had not acted in their best interests.

6                     In 1947 Mrs Cubillo and fifteen other children were taken from the Phillip Creek Native Settlement by the late Miss Amelia Shankelton, the Superintendent of the Retta Dixon Home for part Aboriginal children in Darwin.  The children were taken to Darwin in a truck that was driven by Mr Les Penhall, a cadet patrol officer, and an employee of the Native Affairs Branch.  The Director of Native Affairs at that time was the late Mr Frank Moy.

7                     In 1956 Mr Gunner was taken from Utopia Station by Mr Harry Kitching, a patrol officer.  He also was in the employ of the Native Affairs Branch.  Mr Gunner was placed in St Mary’s Hostel, a home for part Aboriginal children in Alice Springs.  The Director at the time of Mr Gunner’s removal was Mr Harry Giese.

8                     I came to the conclusion that, through the involvement of Mr Penhall, the Director, Mr Moy, played a part in Mrs Cubillo’s removal from Phillip Creek and her detention at the Retta Dixon Home.  I accepted Mrs Cubillo’s evidence that she was viciously assaulted by a missionary on the staff of the Home and I accepted her evidence that she was very unhappy and starved for affection during her time at Retta Dixon.

9                     However, in many very important areas, the history of Mrs Cubillo’s removal from Phillip Creek was incomplete.  Neither Mr Moy nor any other officer from the Native Affairs Branch – except for Mr Penhall – has lived to give evidence about why Mrs Cubillo was removed.  Mr Penhall did give evidence but he was a junior employee at the time and did not know why a decision had been made to remove the children from Phillip Creek.  What is more, none of the parties have been able to find any documents that dealt with the reasons for the removal of the children.  There is a huge void.  We know that Mrs Cubillo was taken away but we do not know why.

10                  The obligation was on Mrs Cubillo to satisfy the Court that the Director failed to act in accordance with the provisions of s 6.  As it is, people are dead and documents, if they ever existed, have been lost.  There is now no way of knowing what went on in the mind of Mr Moy when he participated in the removal and detention of Mrs Cubillo.  I cannot assume, out of a feeling of sympathy for Mrs Cubillo, that Mr Moy failed to perform his statutory duty.

11                  The position concerning Mr Gunner is quite different.  In his case, there were several pieces of documentary evidence concerning his leaving Utopia.  Mr Kitching’s memory has faded and Mr Giese, through ill-health, was unable to give evidence.  However, the documents that were available point strongly to the Director, through his officers, having given close consideration to the welfare of the young Peter.  Most importantly, there was his mother’s thumbprint on a form of request that asked that Peter be taken to St Mary’s and given a western education.  I have concluded that Peter went to St Mary’s at his mother’s request.  I accepted Mr Gunner’s evidence that he had a most unhappy childhood at St Mary’s and I accepted his evidence that he was the victim of a sexual assault by one of the missionaries during his time at St Mary’s.  Nevertheless, I concluded that the evidence did not justify a finding that the Director of Native Affairs removed Mr Gunner from his family against the wishes of his mother.  Although Mr Kitching was involved in the removal, he did so at the request of Mr Gunner’s mother.

12                  As a result of my findings, each of the claims that have been made by Mrs Cubillo and by Mr Gunner must be dismissed.

The full text of this judgment can be found at:  www.fedcourt.gov.au