by Antonio Buti
‘So it’s our submission that it is very important, when one is looking at the claim under the head of fiduciary duty, to trace through the legislation, through the person it is said who is owed the fiduciary duty, through to the person who actually has custody and then determine: has the State in this case got any fiduciary duty to the child or did it have any fiduciary duty to the child at the time these events occurred?
‘It is our submission that it did not. We point out that fiduciary duties are proscriptive only. The duty of the fiduciary is not to benefit at the expense of the beneficiary or to put him or herself in a position where there will be a conflict in duty.’
As if that explanation has not added a barrowload of grist to His Honour’s mill, Walsh adds another grain or two. ‘The decision of Breen is very important in the context of fiduciary duties because it really has established that principle beyond doubt.’
Walsh is referring to the seminal High Court case of Breen v Williams, which upheld a majority decision of the New South Wales Court of Appeal that rejected a claim to expand doctor– patient fiduciary obligations. Justice Gray and Burnside, too, will refer to this case later. Certainly, it is the accepted authority.
Having satisfied, for now at least, Justice Gray’s wish for more clarity of the State’s position on fiduciary duty, Walsh moves on to the Board’s presumed powers as Bruce’s legal guardian.
‘The Aborigines Protection Board have the power as the legal guardian to arrange for the plaintiff’s custody, notwithstanding the fact that he may have had parents alive at the time. Notwithstanding he has parents, the Aborigines Protection Board is the legal guardian. That carries with it the power with respect to custody.’ He adds, ‘Custody includes obviously placement of the child in the custody of some other person, such as Mrs Davies.’
His Honour takes issue with Walsh’s assertion.
‘If the child was not neglected, you still had the power and entitlement to remove?’
‘Yes, and given that the Aborigines Protection Board was the guardian with the power to arrange for custody, there is absolutely no doubt in our respectful submission that the APB had the power to do what it did.’
Justice Gray listens without interrupting.
Walsh continues, picking up the plaintiff’s plea of procedural fairness.
‘Procedural fairness is alleged, with respect, to the removal. But procedural fairness to whom? To the child? To the parent? In our submission, it just doesn’t arise under the circumstances of the legislations.’ Walsh cites the 1949 Crown Solicitor’s opinion to validate his assertion.
If His Honour has a tentative viewpoint on this contention, for the moment he does not reveal it. Walsh continues his closing address, elaborating on prevailing attitudes of that time and the policies that reflected them.
‘The first is the assimilation policy. There is no doubt that attitudes have changed but, originally, there were three distinct areas. The first was a period of protectionism, the second was assimilation, and the third, which emerged after 1963, was one of self-determination … There is an important quotation in para four at the Conference of Commonwealth and State Ministers held in Darwin in July 1964. Your Honour will see the policy of assimilation meant at that time that, “All Aborigines and part Aborigines are expected to eventually attain and observe the same customs” and so forth, “One of the methods of advancing the policy includes continual improvement in … housing facilities, particularly in town areas.” Pausing there, we know that unfortunately at that time there were a group of people that were referred to in evidence as fringe dwellers, namely, those who were camped at the fringe of towns.’
Justice Gray says nothing. Walsh goes on: ‘We also know that by 1965, Mrs Karpany was living at Victor Harbor in a Housing Trust home, which was provided at that time. So, by that time, particularly after the 1963 amendments, things were moving towards a compliance with a policy of providing housing. Your Honour might imagine it was a pretty mammoth job and in the first instance, there were people on missions that had to be dealt with, rural properties, towns and of course people who were on the fringe areas around towns.’
If Walsh is thinking that Justice Gray’s silence for such a relatively long time is testament to his convincing oratory, His Honour is about to dispel the thought.
‘In Kruger’s case, the court made it clear about the difficulty of not imposing today’s standards on yesteryear or judging yesteryear by today’s standards,’ he says.
The judge seems to be empathising with the State’s position. Walsh seeks to capitalise on this perceived empathy. ‘Yes, the High Court certainly did and it is an important decision, I suppose, in that context and particularly because Kruger’s case was dealing with Northern Territory legislation at this time and was looking at issues similar to those which Your Honour may have to look at in this case.’
‘The legislation in some respects was identical with the legislation I am dealing with.’
‘Indeed,’ Walsh is only too pleased to agree, ‘and as Your Honour would know from Cubillo’s case, which flowed from the same ordinances in the Northern Territory, that director, I think was the legal guardian of Aborigines.’
This is good, Walsh thinks, because in Kruger and in Cubillo, both cases involving the removal of Aboriginal children from their families, the plaintiffs lost.
‘Their Honours in Kruger’s case didn’t find much help from the legislation in disclosing what the duties of the legal guardian might be,’ Justice Gray recalls.
A moment of doubt, as Walsh wonders whether this is merely an aside or whether there is something more on His Honour’s mind. Deep down, of course, he knows that Justice Gray does not engage in meaningless asides when hearing a case. He brushes the doubt aside, ‘I will turn to that issue, of course,’ and pushes ahead. ‘One of the important features of the legislation, I think in that case and also in this case, because they had almost identical expression, was the fact there was a discretionary power.’
‘I will look at Kruger’s case in detail a bit more later.’ Non-committal.
‘Indeed, and certainly they are dealing in simple issues.’ A slip of the tongue by Walsh?
Justice Gray knows what he means, but demurs. ‘It might be said there are critical differences between the Northern Territory Ordinance and issues in this state.’
Walsh cedes a little ground. ‘I am sure the differences can be found, but when one compares other cases, there are some striking similarities, too, in the context of removal. We have to keep in mind, of course, that after 1963 the position was changed, so that we are not looking at the same apples, as it were. They are quite different because by 1963 the legal guardian was the mother, not a statutory body, or a particular person.’
‘We will discuss it later, but my memory of the legislation discussed in Cubillo and Kruger for that matter, with removal … generally for the moment, the removal there was within power.’
Where is the judge going with this, Walsh wonders.
Justice Gray dispels Walsh’s puzzlement. ‘If the conclusion is reached here that removal was beyond power, well, then they would be very different cases, wouldn’t they?’
The Advocatus Diaboli’s horns are definitely in place. Moreover, there is not a simple, safe answer. In fact, Gray thinks mordantly, the answer is devilishly difficult.
‘You say the conclusion here in this case?’ Walsh asks, hoping against hope that he has misunderstood the question.
He hasn’t. ‘Yes, if the conclusion here was reached that the Crown Solicitor’s opinion was correct and that it went to address the facts here, well then Cubillo would perhaps cease to have particular relevance, would it?’
‘It would be a strange conclusion in our respectful submission having regard to those striking similarities between the legislation——’
His Honour interjects: ‘Wouldn’t you have to consider section six of the Northern Territory Ordinance and the different wording there to the Act here?’
If the devil is in the detail, Advocatus Diaboli wants to hear it. ‘I am drawing your attention to section six because at some time I would like you to address that and explain to me why that difference in the legislation, if I have read it correctly, is in your view of no particular significance. I don’t think that is answered by saying there are a lot of similarities. I think one has to look at section six of the Ordinance and, to my mind, critically ask if that makes a difference or not.’ His Honour is referring to the Aboriginals Ordinance 1918 of the Northern Territory.
‘The starting point, of course,’ Walsh responds, ‘is principle and we say, as a matter of principle, whatever might have been the case in other legislation is a matter of principle here. The Aborigines Protection Board clearly had the power.’
When all else fails, plead a matter of principle. But Justice Gray wants more—much more. ‘Mr Walsh, I don’t want this to be misunderstood but I take the view if I have a tentative view about something, I should draw it to counsel’s attention, not because I have a final view but I do want to have your submissions on that. I expect at times I will also take on the role of devil’s advocate where I want that point explored and debated. I don’t want that misunderstood.’
Who could misunderstand His Honour? Certainly not Walsh. ‘That is not going to occur. As Your Honour once said when giving the lecture on the topic of advocacy, it is important to draw out what the judge might be thinking of at the time or what thoughts are there. If the judge helps you, then that saves a lot of work.’
But even that placatory gesture fails to soothe. ‘The High Court has made it very clear, as I read their judgments, that judges do have responsibility, if they are of a tentative view, particularly if the view is adverse, that counsel has the chance to deal with it so further reflection might change that view.’
Staunchly, Walsh defends his position on the significance of the assimilation policy in the 1950s. He refers to the minutes of a special meeting of the Aborigines Protection Board on 18 May 1956. ‘I am not going to read through that, but it is clear that the Aborigines Protection Board noted the policy of the government “was the promotion of the welfare of Aborigines in the white community——”’
‘Do you say the conduct of the Board in this case formed part and parcel of this policy of assimilation?’
‘It is clear that they adopted the policy of assimilation.’
Not quite part and parcel, but well on the way to that point, in His Honour’s view of Walsh’s reply. ‘And in particular, did so in the way they conducted themselves with respect to this case?’ Justice Gray is pressing now.
Walsh is not going to walk headlong into that trap. ‘Not in particular in relation to this case at all.’
His Honour does not want obfuscation; he wants a straight answer. ‘What I want to know is, what do you say to the proposition that the Board in this case was following through the conduct that accorded with its policies of assimilation?’
Walsh is aware that, should he botch the answer, he will jeopardise his important claim that the Board had to remove Bruce because of neglectful and harmful parenting. So, in putting the viewpoint that much of the Board’s thinking was in line with an assimilation policy that one must judge according to the standards of that time, he is straddling a particularly vicious barbed wire fence between two alternative claims. Whichever way he jumps, he risks the other option. Not to jump either way means upsetting an increasingly impatient judge who is waiting for an answer.
‘If the Board had intended that assimilation meant taking away, even without the consent of their parents, then that’s not what they did,’ Walsh replies. ‘In the context of this case, what happened was the Board was confronted with a particular child in particular circumstances.’
‘Well, I understand that. We will discuss what happened, but do you say what happened was in accordance with the Board’s adoption of the government’s policy of assimilation?’
Burnside leans forward in his chair. He senses that what unfolds from this point on is going to be pivotal to Justice Gray’s decision-making. He waits for Walsh’s answer.
‘It is against the background of that, of course. All actions of the Board will be against the background, that background. But where you have a neglected child, as we say this child was, or at least the evidence pointed to that, the issue is what is in the best interests of the child at that point of time.’
Burnside tenses slightly. He has a feeling the trap is about to spring.
Walsh obliges. ‘The child was not placed with Mrs Davies to further the assimilation policy in relation to this particular child. The assimilation policy, of course, applied with respect to Aborigines generally, to fringe dwellers or the like, and that assimilation was to work towards integrating them as a group in the community.’
Yes! Burnside lets out a pent-up breath. He knows where Justice Gray will go from here and he is happy. His Honour does not disappoint.
‘As I understand it, it is common ground that this child with its natural parents was a fringe dweller.’
‘It would seem that they were in that area that they were on the fringe of the town, yes.’
‘And that leaving aside detail, what has happened in this case is that this child, at age thirteen months, left his Aboriginal family and joined a European family?’
‘Yes, it is against this background: I point out we don’t know the precise answer to Your Honour’s question because unfortunately too many people are dead, but it is against this background that he didn’t just leave his family. His family, in a sense, left him. It is easy—I know that——’
His Honour cuts him off. ‘Prior to Christmas Day 1957, he was a fringe dweller with his Aboriginal family?’
‘Yes.’
‘Post–Christmas Day 1957 he, having had a short stay in hospital, joined a European family?’
‘He wasn’t with his family. He was with part of his family only. His mother had left and——’
‘Except for that qualification, what’s the answer to the question?’
Walsh waffles an answer. ‘We don’t know whether he was left with Steven Lampard, on the evidence of Hilda, or whether he was with Joe Trevorrow. He was with Joe Trevorrow at the time he was handed to the Evanses but we don’t know exactly what was happening at that time. But, yes, he was in the camp, no doubt about that. But there is some real doubt about who he was with at particular points of time.’
‘It might be, but wasn’t he a fringe dweller in an Aboriginal community?’
‘He was certainly in an Aboriginal community that was in the fringe.’
‘And all that changed on Christmas Day 1957?’
‘Yes, of course it did, but that is self-evident and I wonder why Your Honour is emphasising the point to me. Can I answer it as best I am able at the moment? I may not understand the point.’
‘I was trying to get to a starting point for a discussion but I haven’t succeeded.’
If Walsh does not understand the point, Burnside certainly does. And he has a pretty fair idea of Justice Gray’s tentative position. What’s more, he feels equally sure that Walsh has not dislodged him from it, nor will he, with the verbal jousting having a way to run yet. Burnside is not in the frontline but is nonetheless engaged. Both Burnside and Walsh can attest to the manifest skill of the art of differential advocacy that Gray has visited upon them in this case. With deft checkside punts during their respective closings, Justice Gray will screw the judgment reasoning ball back into their field of play and have them argue the decision points to which he must later address himself. Burnside watches and listens, engrossed as the judge takes issue with Walsh over his contention that Thora had abandoned her children and that Joe had scant regard for their welfare.
‘My submission is that Mother did not return ever to Joe Trevorrow’s household. She never returned.’
The submission does not sway His Honour. ‘If you look at Mr Weightman’s report of March 1958 which suggests the contrary.’
‘Hilda’s evidence was that she didn’t ever return, so we will have to deal with that if there is any inconsistency.’
Justice Gray wants to deal with it in part right now. ‘I am just recalling that Weightman’s memorandum of March 1958 when he reports attending the home and speaking of it being the home of Thora and Joe and seeing a child there and describing the circumstances as “not unacceptable”. But anyway, we will come back to that. I think it is an important document for you to address.’
‘But one shouldn’t assume that he may well have just made the assumption that Mrs Trevorrow was there.’
Burnside cannot help but notice the double negative in Walsh’s rejoinder and wonders whether Justice Gray is getting under his skin a little. If he is, he is about to penetrate a little further. ‘He may have, but this is a formal report prepared by an officer of your client, he is employed by the Department presumably, and in which he reports these matters and it does allow the inference that Mrs Trevorrow was there.’
‘We will deal with that in due course but the overall evidence is in our respectful submission that Thora Trevorrow never returned to live with Joe and that was certainly the evidence of Hilda,’ Walsh challenges.
‘Where was Hilda living at the time?’ It is clear His Honour has been closely following earlier testimony because he already knows the answer.
‘At the time that she was initially living with Mr Trevorrow then with Mrs Vizard and in our respectful submission it is fairly clear that Mother had abandoned the children. She didn’t take them back at that time. She left, she didn’t return, we say, and it is curious that——’