Alternative Law Journal
Martin Flynn and Sue Stanton[*]
Lorna Cubillo was removed from her Aboriginal family in 1945. She was seven years old and living at Banka Banka station in the Northern Territory. She spent the next eleven years in institutions administered by the Aborigines Inland Mission. Peter Gunner was removed from his Aboriginal family in 1956. He was six years old and living at Utopia Station in Central Australia. He spent the next eight years at St Mary’s Anglican hostel in Alice Springs. Lorna Cubillo and Peter Gunner (the applicants) have sued the Commonwealth seeking damages for the suffering and illness caused by their removal.
The claim raises significant and novel legal issues. For example, notwithstanding the involvement of church authorities in their detention, the applicants claim that the Commonwealth bears legal responsibility for what happened. They claim that the Director of Native Affairs failed to ensure that the Aboriginal Ordinance 1918 (NT) was observed. The ordinance provided that the Director was required to form the opinion that removal of an Aboriginal child was ‘necessary or desirable in [their] interests’. The applicants argue that the ordinance was infringed because the Director formed the requisite opinion by relying exclusively on a policy of the Commonwealth favouring racial assimilation. The applicants also claim that the Commonwealth was in breach of a legal duty. Three alternative sources for the duty are suggested: (1) a duty to take reasonable care arising from the general law; (2) a fiduciary duty to act in the best interests of the applicants arising from equity; (3) a statutory duty defined by the Aboriginal Ordinance 1918 (NT) and the Welfare Ordinance 1953 (NT).
The Commonwealth has spent ‘several million dollars’ strenuously defending the applicants’ claim. The Australian Government Solicitor, on behalf of the Commonwealth, engaged senior counsel, two (and sometimes three) junior counsel, a private investigation firm and numerous expert witnesses. On the first day of the trial in March 1999, the Commonwealth made an application to have the claim struck out. The strike-out application occupied 14 court days and, ultimately, failed: see Cubillo & Gunner v Commonwealth  FCA 518 (30 April 1999). The trial re-commenced in August 1999 and over 40 court days were spent receiving evidence in the case. The final submissions of each side occupied a further three weeks in February and March 2000. The judgment of O’Loughlin J has been reserved.
One of the authors (Sue Stanton) observed much of the trial. As a result of those observations and an examination of the transcript we will argue three propositions in this article. First, that a significant plank of the Commonwealth response to the claim has been to avoid a court ruling on the legal issues raised by the applicants. Secondly, that this ‘avoidance approach’ to the applicant’s claim, combined with the cross-examination of Aboriginal witnesses as part of the strenuous defence of the claim has magnified the damage caused by the assimilation policies under scrutiny in the case. Thirdly, that such ‘collateral’ damage need not be an inevitable consequence of litigation against the Commonwealth. We will suggest that if, in the future, the Commonwealth wishes to fairly test the veracity of claims made by members of the stolen generation in court proceedings, then the Commonwealth ought adopt a ‘reconciliatory approach’ (described below) to those claims.
The writ in the Cubillo & Gunner case had just been filed when, in April 1997, the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (the Inquiry) delivered the report entitled Bringing Them Home to the Commonwealth government. The Inquiry found that it was a policy of racial assimilation, sponsored by the Commonwealth, that motivated the removal of many Indigenous children from their families. The Inquiry assumed that the policy makers honestly believed that such removal was in the interests of the children. However, the honest belief of policy makers did not change the fact that, judged by international human rights standards of the day, the assimilation policy was both racist and genocidal. The administration of that policy resulted in the removal of children without regard to their individual welfare and, accordingly, resulted in a violation of human rights of Indigenous children and their families. The Inquiry recommended that the Commonwealth Government set about making reparations in accordance with internationally accepted standards. ‘Reparations’ were defined to include an acknowledgment and apology, measures of rehabilitation and monetary compensation.
In the immediate aftermath of the publication of the Bringing Them Home, the Commonwealth government stated little more than that it did not accept that there had been a gross violation of human rights and, consequently, refused to apologise or offer monetary compensation. The Commonwealth defence in the Cubillo & Gunner trial and the Commonwealth submission to the Senate Inquiry into the Stolen Generation have been more revealing. The Commonwealth clearly reject the methodology, factual findings and conclusions in Bringing Them Home and doubts whether the removal of any Aboriginal child — Lorna Cubillo and Peter Gunner included — was motivated by any consideration other than the individual welfare of that child. Robert Manne (and others) have criticised the enthusiasm with which the Commonwealth has embraced this alternative and improbable view of Australia’s history. While we may join in those criticisms, our present concern is two-fold.
First, the decision of the Commonwealth to make an application to summarily strike out the applicants’ claim as an abuse of process revealed extreme insensitivity to the importance of the case being seen to have its day in court. Indeed, in dismissing the strike-out application, O’Loughlin J observed (at para 203): ‘[T]hese cases are of such importance — not only to the individual applicants and to the larger Aboriginal community, but also to the nation as a whole — that nothing short of a determination on the merits … is warranted’.
Our second concern arises from the fact that the Commonwealth has relied on the statute of limitations by way of defence to the applicant’s claims. The claim will fail unless the Court gives the applicants an extension of time in which to bring their claim, see s 44 Limitation Act 1981 (NT). The Commonwealth has argued that it suffers irreparable prejudice in having to answer a claim that arose from events that occurred over 40 years ago. In the strike-out application, the Court concluded that the argument was premature. The prejudice argument was renewed with vigour during the trial.
MR MEAGHER [Counsel for the Commonwealth]: …Could I ask your Honour to bear in mind that we, in fact, don’t have a person instructing the Commonwealth of those times who can readily bring to mind who the individuals are or even, at times, the subject they’re talking about. The result of that is that when a person goes to the witness box, we have to engage in an examination of such records as we’ve assembled to see, firstly, what there is to be known about that person, and secondly, what there’s to be known about whatever it is they’re speaking about. [10 August 1999, transcript p.1038]
MR MEAGHER: We are putting a much simpler proposition. Namely, that critical witnesses are now gone. That’s what has been pleaded and that is what the case is about, and, of course, as your Honour will recall, the limitation periods have plainly expired and they have to get the extension and they have to show that no prejudice is suffered on that account. [7 September 1999, transcript p.2455]
It remains to be seen whether the extent of the prejudice to the Commonwealth meets the requisite legal threshold. If the prejudice argument succeeds, it will be open to the Court not to give detailed consideration to the applicants’ claims.
In bringing the strike-out application and in relying on the statute of limitations by way of defence, the Commonwealth has treated the applicants’ claim no differently than a routine claim arising from a motor vehicle collision. The applicants’ claim is not a routine claim. It is an opportunity for a court to examine the best available evidence and to make a determination on the legal responsibility of the Commonwealth to the Indigenous people of the Northern Territory who feel aggrieved by the legacy of the policy of racial assimilation. The evidence available to the Commonwealth to defend the applicant’s claims is old and, accordingly, imperfect. However, the onus remains on the applicants to prove their claim. Experts are available. The Commonwealth has submitted hundreds of pages of historical documents in support of its defence. A reconciliatory approach to the applicants’ claim would recognise that sufficient evidence exists for the national interest to be served by having the Court make a determination on the best available evidence.
A reconciliatory approach to future litigation would eschew strike out applications and reliance on the statutory limitation period as a defence. There is no legal obligation on the Commonwealth to rely on a limitation period. The Attorney-General has issued a policy direction which anticipates waiving the limitation period where the Commonwealth has through its own conduct contributed to the delay in the plaintiff bringing the claim. There is precedent for the novel approach that we commend. In the early stages of the native title claim brought by Eddie Mabo, the Queensland government resolved that because of the public importance of the claim, it would not bring an application to strike out the claim. The Commonwealth resolved not to rely on the statute of limitation defence that was available to a claim arising from the 1964 collision between HMAS Voyager and HMAS Melbourne.
Much of the Court time in the Cubillo & Gunner trial was devoted to factual matters that were fundamental to the applicants’ claim. What were the conditions in which Lorna Cubillo and Peter Gunner lived before each was removed? Who removed them? Why were they removed? Did anyone consent to their being removed? Were they detained and, if so, by whom? How were they treated while being detained? Much of this evidence came from the applicants themselves and other Aboriginal witesses.
At an early point in the strike-out application, the Commonwealth confidently submitted that Lorna Cubillo’s allegation of removal without the consent of her mother must be false because Lorna Cubillo’s mother had died before the date of removal. It soon transpired that Lorna Cubillo’s use of the term ‘mother’ in the Court proceedings was not a reference to her birth mother but to the woman who, in accordance with Aboriginal culture, had assumed care of her following the death of her birth mother.
The example outlined in the previous paragraph is not an isolated one. At one point, the applicants’ counsel sought to provide the trial judge with an aide memoire explaining some matters relevant to Aboriginal witnesses. The Commonwealth objected.
MR MEAGHER [Counsel for the Commonwealth]: Well, I object to that, your Honour. The rules of this court are that witnesses are treated in the same fashion no matter what their background. I have obligations to be courteous to witnesses. I don’t need any reminding of it by my learned friend or for that matter, with respect, from the court. [26 August 1999, transcript p.1858]
It was not long before both counsel were required to come to grips with the fact that some awareness of Aboriginal culture would go a long way in obtaining the evidence sought to be adduced.
MR DREYFUS [Counsel for the Applicants, Cubillo and Gunner to witness]: Napanangka, where was Lorna Cubillo born?
THE INTERPRETER: She is asking how she’s going to talk because where she was born is avoidance for Kathleen to say that place name. [26 August 1999, transcript p.1858]
MR MEAGHER [to witness in cross-examination]: Who did you marry there?
MR DREYFUS: Your Honour, this is one of the matters that raised yesterday and there’s a difficulty about asking the … witness to speak the name of her deceased husband. But if that difficulty can be overcome, and there are means to do so …
MR MEAGHER: … But, really, your Honour, I can understand her being sensitive to a number of matters, but it can’t be allowed to intrude on the process of being able to get evidence out. It’s a very straightforward matter as to who someone married, even if that person may have later died. It places an intolerable burden if, every time I ask her about a name, it turns out that person may have died … [26 August 1999, transcript p.1869]
The Australian Law Reform Commission (ALRC) devoted five chapters of Report No 31 The Recognition of Aboriginal Customary Laws (1986) to the issues that may need to be addressed when an Aboriginal person gives evidence in court. It highlighted three areas. First, Aboriginal English and Kriol speakers use words that sound like standard English words, but the words may have a different meaning in Aboriginal English and Kriol. Secondly, the adversary system is characterised by a ‘question and answer’ format during examination and cross-examination. Misunderstandings occur when Aboriginal people adopt their own communication characteristics (for example, avoiding eye contact, lapsing into long periods of silence, habitually agreeing with the questioner). Thirdly, Aboriginal law and culture may impose specific restrictions on the ability of an individual to speak in the presence of certain relatives or about culturally sensitive issues. The issues raised by the ALRC have been much discussed in subsequent cases and expert writings.
For Aboriginal participants and observers of the Cubillo & Gunner trial, the misunderstandings and objections were a source of frustration and anger. We would argue that the misunderstandings and objections were, in large part, unnecessary. A reconciliatory approach to litigation would involve all parties agreeing on a protocol for the reception of evidence. The protocol would reflect the many suggestions in expert literature on techniques for ensuring the reception of Aboriginal evidence in a manner that complies with rules of evidence, is fair to the witness and does not prejudice the interests of the parties to the litigation. There may also be a role for the court. In R v Kenny Charlie  NTSC 1 (15 January 1998) Mildren J imposed limits on the use of leading questions in cross-examination when he considered that an Aboriginal witness was habitually agreeing with the questioner. The same judge has produced model ‘directions to jury’ to alert jurors to the issues noted above and has urged trial judges to be more active in the conduct of a trial where Aboriginal witnesses are involved.
One line of cross-examination of each applicant involved identifying and discussing each and every stressful event in his or her adult life. For example, Lorna Cubillo was questioned about her medical history, the loss of her house in Cyclone Tracy, her mental health and intimate details of her marriage. Counsel for the Commonwealth then proceeded to question her about her relationship with her children and about the impact of difficulties in their lives upon her. At this point, Lorna Cubillo asked, ‘ Am I supposed to answer these questions to you?’ Shortly afterwards, the trial judge responded.
HIS HONOUR: I think I should make a ruling on this, not only for Mrs Cubillo’s benefit but for the benefit of people who are in the court … Now, the case for the Commonwealth is, of course, that they were not responsible for taking Mrs Cubillo, but, in any event, it’s becoming clear to me from the nature of Ms Hollingworth’s cross-examination that the Commonwealth is putting to Mrs Cubillo that if indeed she has suffered ill health, it has been from causes other than or in addition to her removal as a small child. Hence, if this is made out, it could have a material effect on any question of quantification of damages. It is for that reason that I [allow the question] … [12 August 1999, transcript p.1329–1330]
In other words, the Commonwealth sought to emphasise the amount of trauma in the claimant’s life as a means of reducing damages payable. The tone of the Commonwealth submission to the Senate Inquiry into the Stolen Generation is revealing about the sensitivity of the Commonwealth to the quantum of compensation.
The assumption behind the … litigation brought to date appears to be that compensation should be paid for every negative manifestation in a person’s life whether or not that misfortune can be attributed to the events in which the government was allegedly involved … A conservative calculation might be to assume average compensation of $100,000 per person … Such a calculation would imply a total compensation bill of approximately $3.9 billion …
With potential liability of such magnitude, it would be improper for any government to set up a system of determination that did not require rigorous standards of proof. That is in effect what the current common law claims process involves. Its substantial cost is overshadowed by the huge potential cost of not properly testing such claims.
It is a tragic comment on the state of relations between the Commonwealth and Indigenous peoples that fear of being saddled with a compensation bill that would cripple the budget is behind the Commonwealth counsel’s questions to Lorna Cubillo about whether she cares for her children. A reconciliatory approach to litigation would involve negotiations between the parties to the litigation (and Indigenous leaders) with the objective of reaching agreement on the quantum of compensation payable to successful claimants that would not cripple the budget while sparing claimants the trauma of cross-examination.
So long as litigation in the courts is the only option available to members of the stolen generation who seek to hold the Commonwealth accountable for assimilation policies, it would not be surprising if claims continue to be made. The Commonwealth government appears set to strenuously defend each claim. It is an expensive option that will generate much ill-will among Indigenous people. We have suggested that one alternative is for the Commonwealth to adopt a reconciliatory approach to the testing of claims in the courts.
A reconciliatory approach to litigation assumes that domestic law is the most appropriate standard by which to assess claims arising from the assimilation policy and that courts of law are the most appropriate forums for resolving contested claims. Each assumption is questionable. Self-determination is a concept that is rarely mentioned in domestic political circles. One implication of the concept is that the Commonwealth ought to enter negotiations with leaders of affected Indigenous communities about an appropriate response to the damage caused by assimilation policies. Those negotiations would encompass issues such as the relevant standards to be applied in assessing claims, appropriate forums for assessing contested claims and appropriate levels and types of compensation. Both sides have nothing to lose and everything to gain by entering such negotiations.
[*] Martin Flynn teaches law at the University of Western Australia. Sue Stanton is a Research Fellow at the Centre for Indigenous Natural and Cultural Resource Management, Northern Territory University.
 In Joy Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor  NSWSC 843 the Supreme Court of NSW rejected the existence of any duty between the State and Joy Williams notwithstanding that she spent the first 18 years of her life as a State ward pursuant to the Aborigines Protection Act 1909 (NSW).
 The quoted words are from the Commonwealth submission to the Senate Inquiry into the Stolen Generation.
 Some funds were made available for rehabilitation. See Senator John Herron, Minister for Aboriginal and Torres Strait Islander Affairs Commonwealth Response to Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (unpublished 13-page statement, 16 December 1997).
 A 56-page document available from the web page of the Senate Committee Inquiry into the Stolen Generation, see < <http://www.aph. gov.au/senate/committee/submissions/lc_stolen.htm> >
 The Commonwealth submission to the Senate Inquiry relies heavily on the work of Ron Brunton in ‘Betraying the Victims: The “Stolen Generations” Report’, in an Institute of Public Affairs Backgrounder, Vol 10/1, 1998. It also cites extensively from the autobiography of a Northern Territory patrol officer, Colin Macleod: Patrol in the Dreamtime, Mandarin, Kew, Victoria, 1997.
 Manne has written a number of columns on the topic for the Fairfax press. For example, see ‘The Stolen Agenda’, Age, 10 April 2000. See also, Wootten, Hal ‘Ron Brunton and Bringing Them Home’, (1998) 4 Indigenous Law Bulletin 12, April.
 Issued pursuant to s.55ZF of the Judiciary Act 1903 (Cth), see < <http://law.gov.au/olsc/legalservices/legalservices.html> >.
 This information comes from Eddie Mabo’s counsel, Greg McIntyre. The Queensland government subsequently reversed that decision, see Mabo v Queensland (No 1) (1988) 166 CLR 186.
 The Commonwealth subsequently reversed that decision, see The Commonwealth v Verwayen (1990) 170 CLR 394.
 The Australian Law Reform Commission, Report No 31, The Recognition of Aboriginal Customary Laws, AGPS, 1986, 2 Volumes, Chapters 22–26.
 See Criminal Justice Commission Aboriginal Witnesses in Queensland’s Criminal Courts. CJC, Brisbane, 1996, and cases discussed in that Report.
 Mildren, Hon Justice Dean, ‘Redressing the Imbalance Against Aboriginals in the Criminal Justice System’, (1997) 21 Crim. LJ 7; Criminal Justice Commission, Aboriginal Witnesses in Queensland’s Criminal Courts, CJC, Brisbane, 1996, p.4 ff.