by Antonio Buti
Not that he has a phobia about documents; he is, after all, a lawyer and a judge. But as someone who aspires to orderliness, he wants his documents to be complete, presented to him logically—arranged in date order is nice—and readily accessible. With what seems likely to become an interminable argument between opposing counsel as to which documents are subject to professional legal privilege and which are inadmissible because they lack probative value, judicial method seems beyond his reach.
What has set off this glum warm-up to the day is the thought of Walsh’s formal opening, which will begin today’s proceedings and, His Honour has no doubt, also end it. Recalling Walsh’s synoptic opening on that first day and his insistent, hard-hitting cross-examinations in the days that have followed, Justice Gray mentally ticks off what will be Walsh’s significant attack points: unreasonable delay in asserting a claim; legal professional privilege; guardianship; fiduciary duty; causation. All of which can resolve into Justice Gray’s bête noir: unruly documentation.
Thinking back to his days at the prestigious church school St Peter’s College, he recalls the words of one of the Old Testament’s minor prophets, Habakkuk: ‘Write the vision, and make it plain upon the tables, that he may run that readeth it.’ As he stands up in anticipation of Lisa Loechel’s knock on the door, His Honour murmurs, ‘And no speed bumps, please.’
It does not take long for Justice Gray to make clear who will be calling the shots today.
‘Your Honour has our outline of submissions,’ Walsh begins. ‘I don’t propose to read from that but I’m going to highlight some of the features we think are important to identify the issues that may be relevant for the purpose of evidence to unfold. The first matter, by way of background, is the legislation of course.’
His Honour interrupts. ‘I have the submission,’ he acknowledges, but he doesn’t want just extracts from the Aborigines Act. ‘I want the Act as it was then in front of me.’
Walsh, for the moment on the back foot, suggests that His Honour might already have it, ‘because there was discussion about it previously and I have a mental picture of Your Honour looking at it.’
Somebody finds a copy and Walsh goes straight to the issue of guardianship, solicitously offering to take the judge through the relevant sections. He notes that the legislation refers to guardianship as it applies to ‘institutions’ but explains that, as the Aborigines Protection Board had no other institutions in its domain, the purpose of the Act was clearly to describe guardianship as it applied to Aborigines.
He tells the judge, ‘At the time that these events began to unfold … in particular, 1958, the Aborigines Protection Board was empowered because it was a legal guardian to place a child in the custody of another person, but, more importantly, it had a duty to do so. That is the regime that has to be considered.’
As a portent of how the day will go, Justice Gray leaves Walsh in no doubt that he will have to argue every assertion fully, or at least sufficiently, to satisfy him. ‘Where do you say its duties as guardians are spelt out?’
‘Institutions.’
‘No, the Board’s duties as guardian, where do I find those?’
‘“The only duties that are imposed”, section seven.’
That answer is not going to satisfy an obviously impatient Justice Gray. ‘That doesn’t seem to sit very well.’
‘“Relevant duties”, I’m sorry.’
But His Honour is not buying that as sufficiently answering his question. ‘Which of those duties relate to the meeting of its obligations as guardian?’
Walsh quotes from the Act: ‘“To provide when possible for the custody, maintenance and education of the children of Aborigines.”’ He adds, ‘Because it’s not just custody. It’s maintenance, education and custody of Aboriginal children.’
Still not inclined to take anything on counsel’s say-so, His Honour pushes, ‘Your case is that the Board is the guardian of every Aboriginal child and had a duty to provide for the custody and maintenance and education of those children? What resources did it have?’
‘Your Honour will have to do the best with the reports that we have.’ A somewhat injudicious answer of the ‘take it or leave it’ variety. It suggests that perhaps Walsh has not gauged Justice Gray’s frame of mind today as well as he ought to have done.
His Honour’s reply is polite, while carrying a modicum of admonition that he is not in the mood for buck passing. ‘I want your assistance about it.’ He proceeds to extract that assistance with a series of testing questions of his own, the answers to which do not satisfy him. ‘Let me put it another way,’ he prods. ‘There came a time the Aborigines Protection Board was wound up?’
‘Yes.’
‘What happened to its assets and any moneys?’
‘They would have devolved back to the Crown.’
The answer sounds very much like supposition. Justice Gray seems to think so. ‘Why would that be?’
‘Because there would be no other place for them to go; a matter of necessity apart from anything else.’ Even Walsh seems to realise that answer is not going to cut it, so he tries to wriggle off the hook to which he is uncomfortably fastened. ‘But it’s important, in our submission, to note that the scheme involved, what Your Honour correctly points out, an obligation on parliament to provide funds as required——’
Justice Gray’s hook still has him. ‘It’s not “as required”. I’m sorry to pick you up. I don’t know what these words mean as yet. “The money required for any purpose shall be provided”?’
‘Yes, the duty, however, on the Board, in relation to certain matters was to provide when possible——’
‘Would the words “when possible” be a reference to the difficult geographical aspects of it; that one would simply not be able to find these children?’
‘No, it would be for all purposes.’
‘Why do I read the Act that way?’ Fortunately for Walsh, Justice Gray does not wait for an answer but asks a supplementary question. ‘Is there some guidance in the second reading speech?’
‘No, but there is no guidance to say there is any restriction on it.’
‘Does the Secretary’s speech address these issues at all?’
Walsh is now struggling. ‘No, I can’t articulate that at the moment. I’ve looked through the second speech. I can’t recall. I would have to look at that to assist Your Honour. But we say, and it will be for further debate in the final address——’
‘I’d just like to really understand where this is going.’
Gray is tenacious, questioning Walsh about what happens to ‘the child who is meant to be the subject of guardianship. And the structure, as you describe it to me, and the Act, as you ask me to construe it, leaves this obvious problem of when there is a lack of funds.’
Not to be denied, Walsh fires back, but including a precautionary ‘with respect’, as counsel are wont to do when they are about to pick a fight with a judge.
‘And the same happens, with respect, to white children under the Maintenance Act.’
‘There is no board that is guardian of white children, is there, generally in this state?’ Ever polite, Justice Gray turns what he started as a statement—a fact that he clearly knows—into a question so as not to appear to be correcting counsel in front of his client.
‘No, that’s so, but if a child is neglected or abandoned, then duties arise.’ At this point the old adage about knowing, having dug oneself into a hole, when to stop digging does not appear to spring to Walsh’s mind.
‘That’s different because on your argument, the legal guardian is the Board in regard to all Aboriginal children at all times in their infancy.’
‘That’s so.’
‘To the exclusion of the parents?’
‘Yes.’
‘And then there is the possibility, on your argument, if the parliament doesn’t have the resources, the Board can’t, in effect, perform its duties as guardian?’
‘That’s possible.’ Grudgi
ngly agreed.
‘And there is some indication on the documents I’ve seen of some quite serious problems with finances.’
Perhaps it’s time to just lean on the shovel handle and contemplate a strategic withdrawal. But no, Walsh continues digging. ‘And that gave rise to the issue of institutions and whether there should be provisions made for the Board to have its own institutions. There were a number of practical problems. If we assume that a child is in a shocking state. If it is in a hospital and the Board has the obligation under the Act that it has, that it has to, when possible, provide for the custody of that child.’
He digs a little deeper. ‘It may be that there isn’t a possibility, that’s one option. It may be that there is a possibility but it’s utterly unacceptable. Namely, custody to someone who is just not able to look after the child properly.’
‘The question is, judged by whose standards?’
‘Judged by anybody’s standards, we would argue, but there were some cases no doubt as a possibility, on Aboriginal standards, a child has been neglected so badly that none of the Aboriginal elders or upstanding members of the Aboriginal community would consider that the child was being cared for properly.’ He looks at Justice Gray, hoping that the answer has satisfied him.
It hasn’t. ‘One of the difficulties in this case … is that here, on the Crown case, you would say there is evidence of this plaintiff being neglected, evidence of an unsatisfactory home environment and then material that’s been discussed and referred to. On the other hand, there is evidence to suggest that Joe Trevorrow was considered by some to be a very good father.’
On the matter of guardianship, Walsh has hit bedrock.
‘At a later time,’ is his rejoinder.
‘I don’t want to argue about it now. I simply want to indicate to you that on the facts as they appear to be unfolding, there are tensions between observations and conduct and evidence that will need to be resolved.’
Walsh, however, is determined, even if it means scrabbling with his bare hands. He pursues what is for him a salient point, namely, that Joe did not enquire after Bruce when the little boy was in hospital. In pressing that point, he challenges His Honour’s observation that it might have been difficult for an illiterate man, living in a poorly resourced Aboriginal community, to make such enquiries.
‘Furthermore,’ he tells His Honour, ‘there was evidence introduced by my learned friend that at times Joe Trevorrow, although he is said to be illiterate, did communicate, presumably with some other person as scribe, with the Aborigines Protection Board.’
‘It must have been quite difficult to that community at Meningie who weren’t fluent, or were illiterate, to be communicating with the government departments at that time.’
‘No, because he had no difficulty communicating when he wanted to and asking for blankets or rations or other things.’
‘You say “no difficulty”; yes, there is a document there but it’s another matter to say that the actual creation of that document wasn’t quite a process for him.’
‘That may be so but it seems extraordinary that even at that time that these letters were being written by Mr Trevorrow or on his behalf, no mention was made of Bruce Trevorrow. Can I just go back to the relevant period?’
‘That’s, again, judged by whose standards? I do take your point that perhaps to an educated European, it’s very difficult to understand but don’t we have to, in this case, as best we can, try from the evidence—I speak loosely—to put ourselves in the position of Mr Trevorrow, trying to understand his feelings at the time and his ability at the time to deal with these issues?’
His Honour has not yet finished; however, in the interest of evenhandedness, he addresses the second limb of the point he wants to make to counsel for the plaintiff as well as to the defendant. ‘In a sense this is for all counsel. I think this is quite a difficult area when one, as a judge in 2005 of a European background, is trying to make an assessment of conduct by an Indigenous person in 1950. I just think that these matters are going to need to be thought through very carefully.’
Walsh might ruefully have been thinking he had just been hoist by his own petard. Justice Gray has adroitly manoeuvred the discussion so that Walsh himself has effectively negated one of his own key defence points: that, in judging the actions of the government and its departments, one has to judge by the standards and circumstances of the time. His Honour has made it clear that admonition cuts both ways: in order to apply this argument, one must also judge Joe and Thora’s apparently inadequate responses to Bruce’s removal according to those same standards. However, Justice Gray’s position is that those standards were of ‘European’ origin and he would not use them to judge Joe and Thora.
The court adjourns for lunch. They only have an hour so Walsh sends out for sandwiches while he and his team settle into one of the court interview rooms to review the morning session. He fears he may have lost the initiative on the claim that one must judge the State’s actions according to the standards of the time. But on his other point, what do Justice Gray’s questions reveal about his position on guardianship? He feels Bruce’s family testimony has inclined the judge to the view that Joe was a good father, his children were happy in his company and they always had enough food, clothing and shelter. He finds this a bit discouraging. He had cross-examined them intensively, though, it seems, without winning over the judge to the State’s viewpoint.
Where to from here? Burnside has argued that the Aborigines Act, particularly sections 7 and 10, did not give the Board power to remove Aboriginal children from their parents other than in prescribed circumstances. Those provisions did not give the Board unlimited custodial rights. Section 10 did not give the Board the same rights and powers as those of a natural parent. He has submitted that, although the Board was to provide ‘when possible’ for custody, maintenance and education of Aboriginal children, it was not an exclusive guardianship power but a generally supervisory role to protect the welfare of Aboriginal children against injustice. Moreover, Burnside has submitted that section 7(e) prescribed a duty to provide financially for custody, maintenance and education. He has argued from this provision that, when placing Aboriginal children, the Board merely approved maintenance payments; that it did not specifically consider the circumstances or the merits of those placements.
In a nutshell, as Walsh reads Justice Gray, he intends to apply guardianship provisions narrowly. Therefore, he tells his team, they will have to adduce evidence of neglect. The experience of the morning session suggests that this might be difficult to do against Joe. He recommends, and his team agrees, that this afternoon they concentrate on Thora.
At two o’clock, judge and counsel pick up in Walsh’s opening where they left off before lunch, and Justice Gray keeps coming back to his point about judging according to the standards of the time.
Stephen Walsh begins by suggesting Thora did not attempt to see Bruce, though she did demand that the Department return him to her. ‘It is our case … if a natural mother wanted to see the chid that might have been fostered, that would be arranged.’
Gray queries, ‘If that’s right, why didn’t Bruce Trevorrow see his mother within the first year of his being fostered? She had written. She was concerned about him.’
‘She wrote once, she didn’t ask to see him. It was another record——’
Justice Gray stops Walsh mid-sentence. ‘You treat her letter as not wanting to see him, to have contact with her son?’
‘No, it can’t go that far but Your Honour will see the records show that there was a point made about the fact that she hadn’t actually sought to see him and there was a suspicion in relation to the question of——’
Another mid-sentence challenge from His Honour, ‘Where is that document?’
‘There is a document; I’m a bit out of order with this. I know it’s in the document that I propose to refer to.’
Justice Gray, a stickler for order and preparation in his own court appea
rances, will have been unimpressed by this disorder. To be fair, though, this was only Walsh’s opening. He clearly had not anticipated, nor prepared for, this level of intervention in his delivery of it.
Justice Gray, however, was prepared, or perhaps his Associates were. ‘Document 333—it could be read as being a very concerned cry for assistance from mother: “I’m writing to ask if you would let me know how Bruce is and how long before I can have him home.”’
Hastily gathering himself (and the now identified document), Walsh tries to regain some lost ground. ‘It could be interpreted that way. It could also be—if we had the witnesses who could explain why things transpired as they did—the problem might have been a little deeper than that. The issue might have been deeper than that, because in 1966, which is document number 38-P79A—it is dated 13 September 1966: “Mrs Thora Karpany called today … returning to her care without emotionally disturbing the boy.” There was another note——’
His Honour crashes in again. ‘How does that assist in regard to 1958 when at that time Bruce was a baby, his mother, as I say, it could be read as a cry to see her child, her baby? How does that answer talking about something eight years later?’
‘Because there is a concern—I’m sorry it’s not that, I will find it as we go through the documents—there is a concern at one point of time that the issue of child endowment was important.’
‘In 1958?’
‘Generally, and the proposition that we will put to you is that we don’t know, because unfortunately people have passed away and the evidence is not available, what was understood at that time. There was clearly a discussion before that letter with someone; we don’t know what that discussion was. It’s referred to in the letter. Unfortunately, we don’t have Mrs Trevorrow to explain what that discussion was, nor do we have the person that she spoke to. I can tell Your Honour that there is a letter dated 27 May 1959 from the Secretary of the Aborigines Protection Board to the officer in charge of Meningie Police Station referring to Bruce Trevorrow, aged two years, and saying that, “As far as I’m aware Mrs Karpany has never requested that she actually see Bruce but has demanded that the child be returned to her care. It would be possible for Mrs Karpany to see Bruce in the presence of a welfare officer if suitable arrangements were made in advance,” and so forth. Unfortunately, we don’t have a witness to say what happened thereafter.’