"… recognition of the existence of a duty is consistent with the need, when dealing with the question of breach, to take account of complex considerations, perhaps including matters of policy, resources, and industrial relations."
1233 I have already discussed the issue of vicarious liability and I have concluded that the Commonwealth was not responsible for the conduct of the Director when Mrs Cubillo was removed from Phillip Creek and detained at the Retta Dixon Home. In the case of Mr Gunner, I have concluded that it was not the Director of Native Affairs who removed him from Utopia Station; that act of removal occurred as a result of Topsy's decision to give her son a western education. However, the Director did commit Peter to St Mary's Hostel and, as a consequence, he did detain him there both during the legal life, at least, of the committal order. I have also concluded that the Director of Welfare subsequently detained him when the Welfare Ordinance came into force. If contrary to my finding, however, the Director did remove Peter from Utopia, I am of the opinion, for the reasons that I have earlier given when discussing vicarious liability, that the Commonwealth was not responsible for that conduct. I am also satisfied that the Commonwealth is not liable for the detention of Peter at St Mary's Hostel, first by the Director of Native Affairs and, later, by the Director of Welfare.
1234 Should it be that I am found to be wrong because the Commonwealth was vicariously liable for the conduct of the Directors, I set out my views on the question whether the Directors had a common law duty to the applicants. For this purpose I must assume that the Director of Native Affairs was responsible for the removal of Mr Gunner from Utopia Station and that his removal took place against the wishes of his mother.
1235 The statutory powers that were given to the Director of Native Affairs over Aboriginal and part Aboriginal people were very wide. Section 6 of the 1918 Ordinance gave him the authority "to undertake the care, custody or control, of any aboriginal or half-caste" in the circumstances that were stated in the section; that power extended to adults as well as to children. Section 5, which also extended to adults, imposed a whole range of duties on the Director - duties that were intended to be performed for the betterment, welfare and protection for all Aboriginal and part Aboriginal people. Under s 7 of the Ordinance, the Director was initially named "the legal guardian of every aboriginal and of every half-caste child notwithstanding that the child has a parent or other relative living". In 1953, the Ordinance was amended so that the Director became the legal guardian of all Aborigines. Next, there was s 16. It empowered the Director to keep any Aboriginal or part Aboriginal person in an Aboriginal institution (and the Retta Dixon Home and St Mary's Hostel were both Aboriginal institutions) or to move such a person from one institution to another. In other words, the lives of Lorna Nelson and Peter Gunner were under the total control of the Director of Native Affairs. Although there were important changes in 1957 when the Welfare Ordinance came into operation the act of having Peter declared a ward under s 14 of that Ordinance, even though there was no evidence that the Director used his powers under s 17 to "take the ward into his custody", meant that the legal and practical control over his life and his movements continued under the supervision of the Director of Welfare. It might well have been thought by the authorities that there was no need to invoke the powers in s 17 if, as I have found, Peter Gunner was an inmate of St Mary's Hostel at the request of his mother.
1236 It is arguable that the Directors' powers and functions under the legislation were so great that it could only lead to the conclusion that the Directors were under a duty of care to the applicants. The guardianship, the power to undertake the care, custody and control of a child, the power to keep the child in an Aboriginal institution and the statutory obligations in s 5 to advance the welfare of the child could all be said to be compatible with the existence of a duty of care. Furthermore, there was nothing in the legislation that would exclude a common law duty of care nor was there anything in the legislation that provided a remedy for any breach of an alleged statutory duty. There are, however, factors that militate against such a conclusion.
1237 I turn to a consideration of Lord Browne-Wilkinson's counter-considerations and Lord Hutton's commentary on them for the purpose of determining whether, and to what extent, they may affect the outcome of these present proceedings. The first of those counter-considerations was the question of a legislative scheme. Although the legislative scheme in the Aboriginals Ordinance did not call for the involvement of other participating bodies, nevertheless, s 6 of the Ordinance placed an inordinately heavy responsibility on the shoulders of the Director. In the cases of neglect, destitution and, worse, risk of bodily harm and even death, the Director had to be free to act quickly and, perhaps, spontaneously. In such a climate, there were bound to be mistakes from time to time. But they would be mistakes that were made with the interests of the child in the forefront of the Director's consideration. The second consideration also applied here: to remove a child from his or her mother would always be "an extraordinarily delicate one". Some of the writings that I have identified show the interest and concern that some patrol officers took when they were required to consider the welfare of a child. The third consideration would have applied to the Director of Native Affairs; the risk of litigation would have had the potential to have the Director and the Branch's officers "adopt a more cautious and defensive approach". The remaining considerations do not, however, apply in my opinion. The relationship between the authority and the Aboriginal mother would not have created the potential for conflict that is readily apparent in the relationship that would exist between a welfare worker and a child's parents and there was no other avenue available to a dissatisfied person to seek redress. I have attached more weight to the third consideration than Lord Hutton, but if I am wrong in doing that, the existence of the first two considerations remains sufficient in my opinion to reject the submission that either the Director or the Commonwealth owed a common law duty of care to either applicant. A decision to take a child into care is one that courts are not fitted to assess.
1238 Both applicants alleged, in extensive detail, breaches of a common law duty of care. With one or two exceptions, their allegations were identical. Some of their complaints were without any evidentiary foundation - they were based on mere assumptions. For example there was, in each case, an allegation that the Commonwealth (or, as I would have it, the Director) failed to have regard to the best interests of the applicant by failing, properly, to consider the child's family relationships. As for Lorna, there was no evidence one way or the other; there was no evidence from Lorna's carer (whomsoever that may have been) to say that there had not been proper consultation; there was no evidence from the defence to say that there had been some form of consultation. Mrs Cubillo was, in effect, asking the Court to make an assumption in her favour without the benefit of any, or any sufficient, evidence. The case against Mr Gunner was stronger. There was the document purporting to establish Topsy's request that he be taken to St Mary's Hostel and his failure to call any of his aunts - one or more of whom might have been able to assist the Court with direct evidence about the circumstances of his removal.
1239 Both Mrs Cubillo and Mr Gunner alleged that there had been a breach of the duty of care through inadequate supervision and monitoring of the Retta Dixon Home and St Mary's Hostel and the staff employed at those institutions. In Mr Gunner's case, he went a stage further by claiming that:
"The absence of any contact between Welfare and the boys at [St Mary's Hostel] and the lack of any proper system to receive complaints allowed the development of an environment in which sexual misconduct was rife."
1240 In my opinion there was no evidence to justify the allegation with respect to the supposed lack of any proper system to receive complaints. If anything, there was slight anecdotal evidence to the contrary: the boys complained to the Welfare Branch when they were deprived of milk as punishment for riding the cows: a girl's mother took her to a welfare officer to show her the marks on her body as a result of the thrashing that she had received. To suggest, as counsel for Mr Gunner suggested that "the lack of any proper system to receive complaints" had some connection, however remote, with acts of sexual misconduct, was quite wrong: the first had not been proved and, even if it had been proved, there would be no logical connection between the two events.
1241 I turn then to the primary complaint of lack of adequate supervision. In the case of Mrs Cubillo, there was insufficient evidence to make such a finding. There were some reports of attendances by officers of the Native Affairs Branch at Retta Dixon Home but I have no way of knowing after all these years whether they referred to the only occasions of inspections. Once again the applicants have sought to turn the absence of evidence in their favour, overlooking their responsibility to prove their case by evidence and not by conjecture. The position concerning St Mary's Hostel was different; there were more reports; in fact, there were, in my opinion, a sufficient number of reports to justify a finding that there was adequate supervision and monitoring. The fault, if it were fault, on the part of the Native Affairs Branch lay in not taking appropriate action when it became apparent from its supervision and monitoring that the church authorities were failing in their responsibilities.
1242 Many of the complaints that were made on behalf of Mrs Cubillo and Mr Gunner were made without due regard for the statutory powers of the Director. For example, both of them complained that they were in good health and were properly cared for - there was no need for them to be removed. That, however, was not the test of the Director's powers. He was entitled to remove them if he thought it "necessary or desirable" in their interests. It was open to the Director to form an opinion that a western education was "necessary or desirable" in their interests and it is not open to this Court to criticise such an opinion on the sole premise that the Court might have formed a different opinion about the benefits of such an education.
1243 The applicants attempted to inject racial overtures into their submissions by pointing out that only part Aboriginal children were taken; they submitted that there were Aboriginal children at Phillip Creek and at Utopia but they were left with their families. That was true. The policy of assimilation was limited in its initial operation to part Aboriginal children because, as some of the writings have indicated, there was said to be a sense of responsibility to those children whose fathers were European. It is so easy to stand back and say today that the policy was wrong - that the hardship and emotional shock of separating a young child from his or her mother was so great that they outweighed the so-called benefits of assimilation into western culture. However, the issues are to be tested by the standards that were applied in the 1940s and the 1950s. The writings on the subject that have been summarised in these reasons have disclosed that the situation immediately after the war had commenced to move towards consultation and discussion with the child's family even though it was a long way away from a position of no removal except with the consent of the mother. By the time Mr Gunner left Utopia, the 1952 principles had been introduced by Sir Paul Hasluck and the importance of consultation and discussion with the mother was being strongly emphasised. But even then, consent was not essential. However, the provisions of the Aboriginals Ordinance did not call for consent.
1244 My assessment of the positions of Mrs Cubillo and Mr Gunner can be summarised in four phases: in the first place, I am satisfied and I find that each of them suffered trauma and shock when they were removed from their families; in the second place, that trauma and shock continued throughout the periods of their institutionalisation. The third phase calls for a consideration of the general conditions of the two institutions during the time that Lorna and Peter resided in them. Finally, there is a need to consider, in the case of Mrs Cubillo, the conduct of Mr Walter and, in the case of Mr Gunner, the conduct of Mr Constable.
1245 The power of removal and detention was available in each case to the Director of Native Affairs by virtue of the provisions of ss 6 and 16 of the Aboriginals Ordinance. The power could have been misapplied if the Director failed to have regard to the requirement in s 6 that it could only be exercised when he was of the opinion that it was necessary or desirable in the interests of the child to exercise the power. It was open to Mrs Cubillo to satisfy the Court that the Director failed to act in accordance with the provisions of s 6; likewise it was also open to Mr Gunner. However, I have come to the conclusion, in each case, that they have failed to reach the required evidentiary onus. In each case, the applicant has failed in an essential respect - they have failed to satisfy the Court that, when (or if) the Director removed and detained them, he did not have the necessary opinion about their interests. It is very disappointing to arrive at this conclusion. It would have been far preferable to have had all relevant written and oral evidence before the Court so that an informed decision could have been made on the merits of each case. As it is, people are dead or their memories have faded; 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, as the Director of Native Affairs, 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 functions.
1246 The position concerning Mr Gunner is quite different. In his case, there were several pieces of documentary evidence concerning his leaving Utopia and going to St Mary's. Mr Kitching's memory has faded; Mrs McLeod's evidence was unreliable 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 circumstances of the young boy. First, there was a lengthy prelude to Peter's removal during which Mr Kitching reported that he was of the opinion that Topsy's consent would be forthcoming. Secondly, the promise concerning Peter returning home for the holidays was indicative of personal consideration for the future of the boy. Finally, there was Topsy's thumbprint on the form of request. Those factors combined, in my opinion, to reject any claim that the removal and detention failed to comply with s 6.
1247 I move then, notwithstanding the findings of trauma and shock, from the phases of removal and detention to the third phase: a consideration of the general conditions of the two institutions. I think that it is important to stress at the outset that I am satisfied that each applicant suffered severely during the periods that they were institutionalised. However, it was the removal and the detention - more than the conditions of the detention - that were the cause of their sufferings. Putting to one side the conduct of Mr Walter, I believe that Mrs Cubillo's sense of loss for her Aboriginal community and family would have been much the same irrespective of the physical conditions of the Retta Dixon Home. I do not think that overcrowding or unsatisfactory aspects of hygiene caused or contributed to her sense of loss. That loss came from the severing of her ties with her family and the loss of her language, culture and her relationship with the land. And, save for the conduct of Mr Constable, I believe that it is appropriate, as a generalisation, to make the same comment about Mr Gunner. The conditions at St Mary's as reported from time to time by Mrs Ballagh and others, were bad. However, despite that condemnation of those responsible, the legal issue is to determine (if one assumes that there was a breach of a duty of care) how, or to what extent, those dreadful conditions contributed to his loss. My answer is that I do not think that they did. There was no evidence that pointed to Peter suffering ill-health because of the unsanitary conditions. There was no evidence, for example, that he suffered trachoma because of unhygienic conditions at St Mary's. There was, of course, the evidence of children rummaging through rubbish bins for food. However, was that because St Mary's was guilty of failing to feed the children properly or was it an occasional example of the predilection of young children to entertain themselves? The answer is that the evidence was not sufficiently detailed to justify a finding one way or the other.
1248 The acts of the two Directors relative to the removals and detentions of the two applicants had the potential to be within the Directors' powers as contained in s 6 of the Aboriginals Ordinance. As such, even if the Directors owed a duty of care to the applicants, those acts of removal and detention could not amount to breaches of those duties if they were lawful exercises of that power. I do not, however, regard the power of removal and detention as affording protection to a Director when the time comes to consider whether, and to what extent, he supervised and regulated the use and management of the institutions. To have the power to take a child into his care, custody or control, as part of a discretionary exercise of policy, does not mean that the manner in which that care, custody and control is applied is immune from examination and criticism. The duties under s 5 of the Aboriginals Ordinance may not have been couched in the same clear terms as those in s 8 of the Welfare Ordinance but I think that it can be said of both pieces of legislation that a duty was cast on the Director to supervise and regulate the use and management of the two institutions. I do not think that either Director failed to supervise and I do not think that the Director of Native Affairs failed to regulate the Retta Dixon Home. I do think, however, that the Director of Native Affairs and the Director of Welfare did not take appropriate action about the condition of St Mary's.
1249 The position at St Mary's was worse than that at Retta Dixon, but it can be said of both of them that they were inadequately staffed, had inadequate facilities and, in the case of St Mary's, permitted unhygienic and unsanitary conditions to exist for a long period of time. The issue is whether the statutory responsibilities that were imposed on the Directors required them to intervene - particularly in the case of St Mary's. If there was an obligation on the Director to intervene, it was not to the point to say that while the authorities could close the institution down, what would happen to the children? The Director would have had the responsibility to look after the children. That would have been the short answer.
1250 Even then, the question remains: what damage or loss did either of the applicants suffer from the alleged failure of the Director to supervise the institution adequately. Mrs Cubillo's loneliness and despair came from her detention - not from the inadequacies that existed at Retta Dixon. Her claim that there was no love and affection was challenged by the evidence of others, particularly Mrs Treloar and Sister Johnson. I am sure that Mrs Cubillo felt a lack of love and affection but I am not sure that she was justified. I do not consider that either applicant has been able to point to loss or damage that flowed from the conditions of the institutions.
1251 I turn now to consider the serious assaults that were committed by Mr Walter and Mr Constable. First, it should be made clear that it has not been suggested that any such assault would have been acceptable by the standards of the time when they occurred. Secondly, Mr Walter was not at Retta Dixon when Mrs Cubillo went there; putting to one side his voluntary work when he was in Darwin with the airforce, he arrived some seven years later; Mr Constable also arrived at St Mary's about two years after Mr Gunner's arrival. Therefore there was no complaint that the applicants should not have been placed in the institutions because of the presence of Mr Walter and Mr Constable and there was no plea that the Commonwealth should have removed the children from the institutions because of the subsequent presence of the two men.
1252 The Commonwealth raised a further defence with respect to Mr Gunner. It claimed that Mr Constable's sexual assault occurred in the period after the enactment of the Welfare Ordinance at which point of time there was no order in force under s 17 keeping Mr Gunner within St Mary's. I have already alluded to that as a possibility, but in my opinion, it is only a possibility. The fact that there is no evidence that in 1957 the Director of Welfare used any of his powers under s 17, is no justification for a finding that he did not use these powers. It can just as easily be argued that the Director, perhaps merely in a de facto sense, perpetuated his control over Peter and the other wards who were then resident at St Mary's Hostel by participating with St Mary's in retaining the children at the Hostel.
1253 Ms Richards, when addressing on the issue of Mr Gunner's continued residence at St Mary's Hostel after May 1957, submitted that it was the Commonwealth who caused Mr Gunner to be detained. However, she also claimed that, in respect of the period from May 1957 to early 1963, when Mr Gunner went to Angas Downs, there was no exercise by the Director of any power pursuant to s 17 of the Welfare Ordinance.
1254 Under s 17, the Director could have taken Mr Gunner into custody if he considered that it was in the best interests of Mr Gunner (who was then a ward). But, of course, he was already "in custody" in the sense that he had been committed to St Mary's back in May 1956. Under s 17, the Director could have, again if he considered that it was in the best interests of Mr Gunner, ordered that Mr Gunner be kept in an institution; but Mr Gunner was already in an institution. Although she did not express herself in these terms, it seems to me that Ms Richards was saying that the Director could not be treated as having utilised his powers under s 17 unless there was a piece of paper (or some other appropriate evidence) affording tangible proof of that utilisation. Bearing in mind that the onus was on the applicant, that submission has only served the purpose of highlighting that there was no evidence, one way or the other, to explain what happened in May 1957. The archives revealed a substantial amount of detail - so much, that there is an invitation to assume that the absence of a committal order meant that no written order had been executed. However, because of the huge gap in time, I am not prepared to draw such an inference. No help can be gained from the provisions of the Welfare Ordinance. It did not require the usage of the powers in s 17 to be recorded in writing.
1255 Neither in the case of Mrs Cubillo nor in the case of Mr Gunner did the Commonwealth or the Director know of the assault. Indeed, both applicants conceded that they told no one in authority of the incidents. Actual knowledge of conduct, or of predilection to such conduct, has not been proved and in neither case were the circumstances such that it could be said that either the Director or Commonwealth ought to have known of the assaults or of the assailants' propensities to commit the assaults. In coming to these conclusions I have limited my comments to the most serious allegations that were made by the applicants and I have not overlooked the concerns that Mr McCaffrey expressed about Mr Walter. In Mrs Cubillo's case there were, of course, additional matters: the incident in the car when Mr Walter put his hand on her leg and her allegation of floggings. I am satisfied that an incident in the car occurred and that it so frightened her that she started to cry. I am also satisfied that corporal punishment was administered to her and other children at the Retta Dixon Home. I am not satisfied that "flogging" is, however, an apt description. Misses Shankelton, Dinham and Spohn were not able to give evidence in their defence and the evidence of Mrs Treloar, Sister Johnson, Mrs Matthews and Mrs Harris does not match up to the word "flogging". However, I do not think that it is necessary to explore the matter in any further detail. Whatever cause of action Mrs Cubillo might have had against the Aborigines Inland Mission and members of its staff, that cause of action does not extend, in negligence, to the Director or the Commonwealth. The conclusion at which I have arrived with respect to Mrs Cubillo also applies to Mr Gunner. The conduct of Mr Walter and that of Mr Constable might have led to an award of damages against each of them and their respective employers, but not against the Directors. Apart from his indirect involvement in the appointment of the Superintendent of an institution, the Director had no involvement in the choosing of staff. That was the sole responsibility of the mission and the mission alone, to the exclusion of the Director, would have borne the consequences of an employee's misconduct. The Commonwealth is further removed from risk because neither applicant has pleaded that it was liable in respect of any tort that had been committed by Mr Walter or Mr Constable.
1256 The conclusion that I have reached is that there was no common law duty of care imposed on the Director. That conclusion comes notwithstanding the strong language of ss 5 and 16 of the Aboriginals Ordinance and the equally strong language of the Welfare Ordinance. However, when one reflects, the result is no different to the legal position that exists between a child and a parent. In Hahn v Conley (1971) 126 CLR 276, the High Court held that no duty of care arose merely from the fact that a child was in the care and custody of his grandfather. Barwick CJ said at 283-284:
"… the moral duties of conscientious parenthood do not as such provide the child with any cause of action when they are not, or badly, performed or neglected. … whilst in particular situations and because of their nature or elements, there will be a duty on the person into whose care the child has been placed and accepted to take reasonable care to protect the child against foreseeable danger, there is no general duty of care in that respect imposed by the law upon a parent simply because of the blood relationship. Also parents like strangers, may become liable to the child if the child is led into danger by their action."