The Extended O'Loughlin J

393 ... 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.

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.

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.

1535 These were all emotive issues but there was a justification for complaining about many of them. Some I have already addressed, such as the evidence from Mrs Cubillo, Mrs Katona and Mrs Hill about a lack of love and affection. I am satisfied that they felt that absence. Yet evidence of other witnesses such as Sister Johnson, Mrs Treloar, Mrs Harris and Mrs Matthews tell a different story. I cannot make a finding of legal liability against anyone based upon some of the children reacting adversely to a perceived lack of love and affection. Regrettably, that is a human failing that can be found in families as well as in institutions. Corporal punishment was inflicted in both institutions in a manner that would not be tolerated today. However, putting to one side the conduct of Mr Walter and Mr Constable, I find that the evidence of corporal punishment was insufficient to bring down findings of fault. The conditions at St Mary's Hostel were very poor throughout most of the time that Peter Gunner was there. The buildings and other improvements in both places were primitive on today's standards but they should be compared with what existed in the Territory after the war. Cynical though it may be to some, the conditions at Retta Dixon Home were preferable to those at the Phillip Creek Native Settlement and St Mary's, bad as it was, was better than life in a camp at Utopia. Mrs Kunoth-Monks made that clear, although I am conscious of the fact that she benefited from Sister Eileen's presence at the Hostel. This aspect of the applicants' claims suffered in another respect. No evidence was placed before the Court about living conditions in other hostels or institutions in Darwin or Alice Springs. Any willingness to condemn St Mary's Hostel for the state of its facilities must be tempered by the realisation that there was no other place against which it could be compared save the native camp at Utopia. In European standards, with beds and bedding, covered roofs, ablution blocks, toilets, hot water and other basics, St Mary's was better than what Peter left behind in Utopia even though St Mary's facilities were the subject of ongoing criticism by officers of the Welfare Branch. Mr Worthy, during the course of his evidence drew comparisons between the Territory's Welfare Branch and the Victorian Social Welfare Department, commenting that the Victorian body "had very strict control over both the Church and the Welfare bodies that ran the children's institutions". For my part, I do not believe that there would be any value in comparing the situation that existed in Victoria with that in the Northern Territory. Victoria was, at that time, far more advanced economically, politically and socially. A better comparison would have been one that looked at the Retta Dixon Home and St Mary's on the one hand and other comparable institutions in the Territory, the Kimberley or Northern Queensland. Those areas, at that time, would have been more appropriate sources of comparison. The evidence did not warrant a finding that the conditions at the Retta Dixon Home were inadequate or below standard. However, despite the excuses that can be found for St Mary's, I still think that it failed.

1148 [!] The fourth and last purpose for the removal policy, as identified by the applicants, was said to be to "breed out `half-caste' Aboriginal people and protect the primacy of the Anglo-Saxon community". That must be rejected. Although there were pre-war writings that promoted miscegenation, no material in the trial would suggest that any such purpose existed in 1947 when Mrs Cubillo was removed from Phillip Creek - nor was there anything to suggest that such a purpose operated at any time up to 1963 when Mr Gunner left St Mary's Hostel. Counsel for the applicants referred to "the myth" of "half-caste as outcast", arguing that there was no justification for the belief that part Aboriginals were rejected by Aboriginals. Ms Richards, who was then addressing on behalf of the applicants, referred to it as an ill-informed generalisation. Regrettably, I cannot agree. Bearing in mind that it was one only of numerous side issues that were raised in the trial, there was anecdotal evidence of such rejection. The evidence was not investigated in sufficient depth to enable detailed findings to be made on the subject. I limit myself to rejecting the claim that it was a "myth" to think of a part Aboriginal child as an outcast in Aboriginal communities. There was evidence both ways: evidence of warmth and loving care for the children on the one hand: evidence of death and rejection on the other. I mention a few examples from the evidence that, in my opinion, are of sufficient weight to reject the applicants' submission. Mrs Harris and Mrs Matthews both recounted sad stories of rejection and death of part Aboriginal children. The applicants' own witness, GK, conceded that he understood that his life, as a small child, had been at risk. The concern about death and rejection was touched upon by some of the former public servants. Mr Ford referred to a parent "who may be in trouble" for having a part Aboriginal child. Mr Les Wilson talked of a part Aboriginal child at risk of being "ostracised". Mrs Moy claimed that there was a habit of killing one of twins. Finally, Mr Gunner believed Florrie Ware when she told him that his mother had put him on an anthill.

1159 The applicants have pleaded that the Commonwealth had a policy that called for the removal of part Aboriginal children without regard to their individual circumstances. Using the purported existence of such a policy as a lynch-pin, the applicants have then argued that that policy was imposed by the Commonwealth on those who were responsible for the administration and implementation of the legislative schemes that were contained, first, in the Aboriginals Ordinance and, then, in the Welfare Ordinance. The next step in the applicants' argument was to the effect that the Commonwealth, having imposed its policy on the Directors, had thereby caused the Directors to refrain from acting in accordance with their own opinions or had caused the Directors to act without having regard to the interests of the children.

1160 That submission suffered from a lack of support from the documentary evidence. I have already set out many of the writings that were tendered on the subject of "policy". The 1952 principles were clear and concise and I see no reason to withhold from saying that they applied four years later at the time when Peter Gunner went to St Mary's. The position that existed in Lorna Nelson's time was not so clear cut however. It would probably be necessary to go back to the situation that existed prior to the Second World War. Even so, there was nothing in any of the writings that would justify a finding that all part Aboriginal children had to be removed or that all illegitimate part Aboriginal children had to be removed or that all illegitimate part Aboriginal children living in native camps had to be removed. Then, if one moves from "policy" to "implementation of policy", the evidence failed to establish that there even was, at any time, activity on such a scale that it could be said that a general policy of removal was then being enforced. The writings of the patrol officers to which reference has been made have indicated that there was a matter of selectivity based on the personal circumstances of the individual children. As I said at the outset of these reasons for judgment, the evidence does not deny the existence of the stolen generation and there was some evidence that some part Aboriginal children were taken into institutions against the wishes of their parents. However, I am limited to making findings on that the evidence that was presented to this Court in these proceedings; that evidence does not support a finding that there was any policy of removal of part Aboriginal children such as that alleged by the applicants: and if, contrary to that finding, there was such a policy, the evidence in these proceedings would not justify a finding that it was ever implemented as a matter of course in respect of these applicants.

1304 I would have thought that those allegations raised the issue of an improper purpose on the part of the Commonwealth or the Director. To allege a purpose of assimilation, without more, might have been unexceptional as there might have been those who were of the opinion that assimilation into western society was necessary or desirable in the interests of the part Aboriginal child. However, to allege that the purpose of the removal and detention was (or included) the destruction of the child's association with his or her mother, family and culture and the protection of the primacy of the Anglo-Saxon community would, if true, severely challenge the bona fides of the Commonwealth, the Director and the other servants and agents of the Commonwealth who were charged with the responsibility of implementing the 1918 Ordinance and, later, the Welfare Ordinance. In the interlocutory judgment, I allowed for the possibility that the applicants might be pursuing an improper purpose; that possibility was specifically rejected at one stage of the applicants' submissions, only to find it remaining in these further and better particulars and in their final submissions on the question of fiduciary duties.

1305 Despite the confusion, I am of the opinion that there are short answers to each of these points. The first of them is that it is necessary to distinguish between "purpose" and "consequence". I have found that neither Mrs Cubillo nor Mr Gunner has been able to establish a failure on the part of the Director to comply with the provisions of the legislation. That therefore means that they have failed to prove that the "purpose" of their removals and detentions was (or included) the purpose of destroying their associations and connections with their mothers, families and culture. Regrettably however, that destruction did occur in each case, but it was as a "consequence" of the implementation of a "purpose" - a "purpose" that could not be identified from the evidence in the case of Mrs Cubillo. In Mr Gunner's case it was as a "consequence" of his mother's decision to ask the Director to commit him to St Mary's.

From Cubillo v Commonwealth. The emphasised excerpts are those Andrew Bolt chose for today's column inviting his readers to umpire a barney he's having with Jack Rush QC over this case.