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TREVORROW v STATE OF SOUTH AUSTRALIA 1 August 2007 )
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SUPREME
COURT OF
(Civil)
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suppression orders or statutory provisions prohibiting publication that may
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judgment to ensure that the intended use of that material does not breach any
such order or provision. Further enquiries may be directed to the Registry of
the Court in which it was generated.
TREVORROW v STATE OF
Judgment
of The Honourable Justice Gray
TORTS - MALICIOUS PROCEDURE AND
FALSE IMPRISONMENT
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE
EQUITY - GENERAL PRINCIPLES - FIDUCIARY OBLIGATIONS
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE CROWN -
LIABILITIES OF THE CROWN - IN TORT - FOR ACTS OF SERVANTS OR AGENTS - LIABILITY
OF SERVANT OR AGENT - FOR MISFEASANCE IN PUBLIC OFFICE
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT -
REMOTENESS AND CAUSATION
LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - THE
PERIOD OF LIMITATION - ACTIONS FOUNDED ON SIMPLE CONTRACT AND TORT (INCLUDING
BREACH OF STATUTORY DUTY)
The plaintiff brought an action against the State of
Held: The removal and placement of the plaintiff was without statutory warrant
or legal authority and ultra vires – the statutory board and government
department involved in the plaintiff’s removal, placement and return to his
natural family were emanations and agents of the State – the State is liable
for the actions of the board and departmental officers - the State owed a duty
of care to the plaintiff at the time of his removal, fostering and subsequent
return to his natural family – the State breached its duty of care to the
plaintiff – the plaintiff was falsely imprisoned – the plaintiff was subject to
misfeasance in public office – the State had a fiduciary duty to inform the
plaintiff of the circumstances of his removal and to ensure he received
independent legal advice - declarations made and damages including exemplary
damages awarded.
The plaintiff made application for an extension of time pursuant to the
Limitation of Actions Act – consideration of principles in extending time –
consideration of the defence of laches – Held: Extension granted – State’s
defence of laches rejected.
Aborigines Act 1934-1939 (SA) s 4, s 5, s 6, s 7, s 8, s 9, s 10, s 17,
s 24, s 31, s 32, s 33, s 34, s 38, s 39, s 40, s 42 and s 51; Maintenance
Act 1926-1937 (SA) s 5, s 8, s 12, s 15, s 16, s 28, s 30, s 31, s 33, s
37, s 50, s 100, s 101, s 102, s 106, s 110, s 128, s 147, s 149, s 150, s 172,
s 175, s 167, s 168, s 189 and s 194; Aboriginal Affairs Act 1962 (SA) s 4,
s
5, s
13, s
15 and s
16; Limitation
of Actions Act 1936 (SA) s 35, s 36, s 45 and s 48; Crown
Proceedings Act 1992 (SA) s 5; Aboriginals Ordinance 1918 (NT);
Adoption of Children Act 1925-1934 (SA) s 12; Social Welfare Act 1970
(Vic) s 36; Immigration
(Guardianship of Children) Act 1946-1973
(Cth) s 6; Public Service Act 1916 (SA); Evidence Act
1929
(SA) s 45A; Community Welfare Act 1972 (SA) s 5, s 7 and s 10;
Children's Protection Act 1936 (SA) s 5; Social Welfare Act 1926-1965
(SA) s 167 and s 168; Ordinance No 12, 1844 .; State Children Act
1895 (SA) S 16 and s 33; Aborigines Act 1911 (SA) s 4, s 5, s 10, s
14, s 17 and s 31; Aborigines (Training of Children) Act 1923 (SA) s 6,
s 7 and s 8; Aborigines (Consolidation) Act 1934 (SA); Maintenance
Act Amendment Act 1965 (SA); Justices Act 1921 (SA) s 50(1),
referred to.
Alphacell Ltd v Woodward [1972] AC 824; Anthony Hordern & Sons
Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1;
Attorney General v Prince & Gardner [1998] 1 NZLR 262; B v
Attorney-General of New Zealand [2004] 3 NZLR 145; Bank of New South
Wales v The Commonwealth of Australia (1948) 76 CLR 1;
Barker and Others v Duke Group Ltd (in Liq) (2005) 91 SASR 167; Barrett
v Enfield London Borough Council [2001] 2 AC 550; Bennett v Minister of
Community Welfare (1992) 176 CLR
408; Breen v Williams (1996) 186 CLR 71;
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR
541; Brockhill [2001] 2 AC 19; Bropho v Western Australia
(1990) 171
CLR 1; Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson
(1995) 184 LSJS 147; Carnegie v State of Victoria [1989] VSC
(unreported, Full Court, 14 September 1989); Chappel v Hart (1998) 195 CLR
232; Cia de Seguros Imperio v Heath (REBX) Ltd and Others [2001] 1
WLR 112; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR
384; Clay v Clay (2001) 202 CLR
410; Cotogno v Lamb (No 3) (1986) 5 NSWLR 559; Coulthard v Disco
Mix Club Ltd and Anor [2001] 1 WLR 707; Cowell v Corrective Services
Commission of NSW (1998) 13 NSWLR 714; Crimmins v Stevedoring Industry
Finance Committee (1999) 200 CLR 1;
Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; Daniels Corp v ACCC
(2002) 213
CLR 543; Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR
219; Downey v Trans Waste Pty Ltd (1991) 172 CLR
167; Duke Group Ltd (in Liq) v Alamain Investments Ltd & Ors (2003)
232 LSJS 58; Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 at
[470]; Finlay & Ors v Silcon Industrial Pty Ltd & Anor (2003)
229 LSJS 14; Fitzgerald v Masters (1956) 95 CLR 420;
Fitzgerald v Penn (1954) 91 CLR 268;
Forbes v Davies and Commonwealth of Australia (1994) Australian Torts
Reports 81-279; Fountain v Alexander (1982) 150 CLR
615; Gerula v Flores (1995) 126 DLR (4th) 506; Graham Barclay
Oysters P/L v Ryan (2002) 211 CLR
540; Gray v Motor Accident Commission (1998) 196 CLR 1;
Groves v The Commonwealth (1982) 150 CLR
113; Hewer v Bryant [1970] 1 QB 357; Hospital Products Ltd v
United States Surgical Corporation (1984) 156 CLR 41
at 102; Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR
334; Jaensch v Coffey (1984) 155 CLR
549; JD v East Berkshire Community Health NHS Trust and Ors [2005] 2
WLR 993; Johnson v Perez (1988) 166 CLR
351; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd
(1985) 157
CLR 309; The King v Wallis and Another; Ex parte Employers Association
of Wool Selling Brokers and Others (1949) 78 CLR 529;
Knox v Gye (1872) LR 5 HL 656; Kruger v Commonwealth (1997) 190 CLR 1;
Lamb v Cotogno (1987) 164 CLR 1;
Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221; Leon Fink Holdings Pty
Ltd v Australian Film Commission (1979) 141 CLR
672; Lovett v Le Gall (1975) 10 SASR 479; Luscombe v State of
South Australia (1984) 118 LSJS 221; McPhee v Blyth (1992) 166 LSJS
236; Maguire v Makaronis (1997) 188 CLR
449; Marshall v Watson (1972) 124 CLR
640; Medlin v State Government Insurance Commission (1995) 182 CLR 1;
Meering v Grahame-White Aviation Company Ltd (1919) 122 LT 44;
Metropolitan Bank v Heiron (1880) 5 Ex D 319; Mills v Meeking (1990)
169 CLR
214; Motor Terms Co Pty Ltd v Liberty Insurance Ltd (1967) 116 CLR 117;
Murray v Ministry of Defence [1988] 2 All ER 521; Myer Stores Ltd and
Ors v Soo [1991] 2 VR 597 at 599; Napolitano v Coyle (1977) 15 SASR
559; Neale v Colquhoun [1944] SASR 119; Neindorf v Junkovic
(2005) 222 ALR 631; New South Wales v Moss (2000) 54 NSWLR 536;
Newcastle City Council v GIO General Ltd (1997) 72 ALJR 97; Northern
Land Council v The Commonwealth of Australia (1987) 75 ALR 210; O'Brien
v McKean (1968) 118 CLR
540; Phelps v Hillingdon London Borough Council [2001] 2 AC 619;
Pollack v Volpato [1973] 1 NSWLR 653; Pyrenees Shire Council v Day
(1998) 192
CLR 330; R v Bonython (1984) 38 SASR 45; R v Calbria (1982)
31 SASR 423; R v D [1984] 1 AC 778; R v Governor of Brockhill Prison;
Ex parte Evans [No 2] [2001] 2 AC 19; R v Lavender (2005) 222 CLR 67;
R v Nicholson (1984) 12 A Crim R 231; R v Perry (No 4) (1981) 28
SASR 119; Re Bolton; Ex parte Beane (1987) 162 CLR
514; Re Loftus (deceased); Green & Ors v Gaul & Ors [2006] 4
All ER 1110; Rivett Arboricultural & Waste Equipment Hire Pty Ltd v
Evans (No 2) [2007] SASC 197;
Ross v Chambers (Supreme Court of Northern Territory, Kriewaldt J, 5 April
1956, unreported); Roy Morgan Research Centre Pty Ltd v Commissioner of
State Revenue (Vict) (2001) 207 CLR 72;
Ruddock v Taylor (2005) 222 CLR
612; S v Gloucestershire County Council [2001] Fam 313; Sanders v
Snell (1998) 196 CLR
329; SGH Ltd v FCT (2002) 210 CLR 51;
Shorey v PT Limited (2003) 77 ALJR 1104 AT [44]-[47]; Sola Optical
Australia Pty Ltd v Mills (1987) 163 CLR
628; State of New South Wales v Fahy [2007] HCA
20; Sullivan v Moody (2001) 207 CLR
562; Superannuation Fund Investment Trust v Commissioner of Stamps (SA)
(1979) 145
CLR 330; Sutherland Shire Council v Heyman (1985) 157 CLR
424; Tame v New South Wales (2002) 211 CLR
317; The Commonwealth v Yarmirr (2001) 208 CLR 1;
Tito v Waddell (No 2) [1977] Ch 106, at 139; Trevorrow v State of South
Australia (No 2) (2005) 94 SASR 1; Trevorrow v State of South Australia
(No 3) (2005) 94 SASR 44; Trevorrow v State of South Australia (No 4)
(2005) 94 SASR 64; Trobridge v Hardy (1955) 94 CLR 147;
Ulowski v Miller [1968] SASR 277; Uren v John Fairfax & Sons Pty Ltd
(1966) 117
CLR 118; Van de Heuvel v Tucker (2003) 85 SASR 512; Victorian
Workcover Authority v Esso Australia Ltd (2001) 207 CLR
520; Visy Paper Pty Ltd v Australian Competition and Consumer Commission
(2003) 216
CLR 1; W v Essex County Council [2001] 2 AC 592; Waters v
Commissioner of Police for the Metropolis [2000] 1 WLR 1607; Wedd v Wedd
[1948] SASR 104; Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71;
Wik Peoples v Queensland (1996) 187 CLR 1
at 90; Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35
NSWLR 497 at 512; Wilson v Peisley (1975) 7 ALR 571; Wyong Shire
Council v Shirt (1979-1980) 146 CLR 40;
X (Minors) v Bedfordshire County Council [1995] 2 AC 633; XL Petroleum
(NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR
448; Youngman v Lawson [1981] 1 NSWLR 439; Zorom Enterprises Pty
Ltd v Zabow [2007] NSWCA
106, considered.
TREVORROW
v STATE OF
[2007] SASC 285
Civil
GRAY J
INTRODUCTION[1]
|
1 |
On Christmas Day 1957, an Aboriginal infant in need of
medical treatment was sent to hospital. The child recovered a short time
later. He was then taken from hospital and placed in long term foster care. His
parents were unaware of the removal or fostering. Almost 50 years later, this
Court is to determine the legal consequences that flow from the removal, his
placement with another family, and the circumstances of his return to his own
family a decade later. |
|
2 |
The general circumstances giving rise to this litigation
are that the plaintiff, Bruce Allan Trevorrow, an Aboriginal child, then aged
13 months, was sent by his father Joseph Trevorrow with neighbours from
Meningie to the Adelaide Children’s Hospital on Christmas Day 1957. Joseph
had informed the neighbours that the plaintiff was suffering from stomach
trouble. The neighbours drove the plaintiff to the Children’s Hospital where
he was admitted. The hospital notes recorded that the plaintiff had no
parents. They also recorded that the plaintiff was neglected and
malnourished. According to the hospital records, the plaintiff responded to
treatment and by New Year’s Eve it was noted that he was "going
well". |
|
3 |
At or about that time it appears that Martha Davies
responded to a newspaper advertisement seeking foster care for Aboriginal
babies. On |
|
4 |
The plaintiff and his father never met again. Joseph died
some eight years later. The plaintiff was reunited with his mother, Thora
Karpany, and siblings almost a decade after he was first placed with Martha.
By this time, Thora had remarried and had further children from this
relationship. In 1967, the plaintiff, as a 10-year-old, returned to live with
Thora. That arrangement continued for less than 14 months. The plaintiff
spent the balance of his adolescence in and out of institutions. The
plaintiff claimed that the circumstances of his removal from his mother and
natural family and his ongoing separation for almost a decade has led to
injury, loss and damage. It was the plaintiff’s case that he has led a
troubled life marked by a loss of family and community identity, a loss of
cultural identity, depression, alcoholism, poor health, poor domestic
relations and an erratic employment history. |
|
5 |
Counsel for the plaintiff contended that two Crown
Solicitors, one in 1949 and the other in 1954, advised that the process later
followed in the removal of the plaintiff was not authorised by law and was
beyond power. The plaintiff alleges that he was the subject of misfeasance in
public office and was falsely imprisoned. It was contended that the
defendant, the State of |
|
6 |
The State denied that the plaintiff was unlawfully removed
from his parents, that the APB was an emanation of the State and thereby his
legal guardian, and that there was any duty owed or, if owed, any breach. The
State denied any liability arising from any of the pleaded causes of action. |
|
7 |
The plaintiff sought orders pursuant to the Limitation
of Actions Act 1936 (SA) extending time for the bringing of a
number of the causes of action. The State opposed such orders. With respect
to the claims that did not attract a statutory time limit, pleas of laches
were raised. The State submitted that grave prejudice followed from the delay
in the institution of these proceedings. The State claimed that a number of
important witnesses had died, or were so aged as to be incompetent. |
|
8 |
The management of documents in the trial has posed some
difficulty. The parties could not agree on a common book of documents. In the
event the parties tendered separate and compendious books of documents, each
set organised to suit the presentation of that party’s case. The Court’s
attempt to have the one consolidated set of documents agreed, even late in
the trial, was unsuccessful. Regrettably, a degree of duplication inevitably
resulted. The parties are not to be criticised – extraordinary efforts were
made to assist the Court with aged, difficult to handle and extensive
documentation. A number of documents that appeared to be identical required
close examination as from time to time subtle material differences appear. |
|
9 |
The documentation of the plaintiff’s early years is
extensive. However, in certain respects, records that have and may have
existed have been lost. |
|
10 |
A number of witnesses gave evidence, including witnesses
from the time who were directly involved with the plaintiff as a child. In
assessing that evidence, care has to be taken of the toll that the passing of
time can have on memory. |
|
11 |
There is risk, where a court is being asked to determine
the legal consequences of events that took place four to five decades ago,
that contemporary attitudes of witnesses, experts, legal advisers and of the
court will have an effect on the presentation and determination of the
issues. |
|
12 |
Particular attention needs to be paid to changing
community standards. As Brennan CJ observed in Kruger v Commonwealth:
[2] |
Moreover, when a discretionary power is statutorily
conferred on a repository, the power must be exercised reasonably, for the
legislature is taken to intend that the discretion be so exercised.
Reasonableness can be determined only by reference to the community standards
at the time of the exercise of the discretion and that must be taken to be the
legislative intention. Therefore, it would be erroneous in point of law to hold
that a step taken in purported exercise of a discretionary power was taken
unreasonably and therefore without authority if the unreasonableness appears
only from a change in community standards that has occurred since the step was
taken.
O’Loughlin J drew upon these remarks in Cubillo v Commonwealth (No 2),
where he observed: [3]
It is a truism to say that we live in changing times. What
was accepted yesterday is rejected today. What would not be tolerated yesterday
is accepted today. There are moral and social issues that have in the past
divided, and continue today to divide, sections of the community.
Then later: [4]
[N]ot only is it relevant to have regard to the state of
knowledge, to technology and to standards of conduct and behaviour at the relevant
time, but allowance must also be made for changes in those matters to be
implemented and generally accepted. Again, in determining what is reasonable in
that regard, matters such as the existence of resources and statutory power to
effect change must be taken into account. In some cases, of course, such
changing values may come to be reflected in policy but this can only be done to
the extent that it is not inconsistent with the existing statutory regime.
|
13 |
A court must also consider applicable legislation in the
context of its historical setting. In Kruger one of the issues the
Court had to decide was the legality of conduct governed by provisions of the
Aboriginals Ordinance 1918 (NT). Toohey J observed:[5] |
When the Ordinance is analysed and placed in its historical
setting, is it reasonably capable of being seen as providing a rational and
relevant basis for the discriminatory treatment of persons answering the
description of "Aboriginal or half-caste"? No such basis would
survive analysis today. But, for the reasons advanced earlier in this judgment,
the Ordinance must be assessed by reference to what was reasonably capable of
being seen by the legislature at the time as a rational and relevant means of
protecting Aboriginal people against the inroads of European settlement. That
is a matter of evidence. ...
|
14 |
The present proceedings, as earlier noted, relate to
events that commenced some 50 years ago. However, extensive contemporaneous
documentation relevant to the events was tendered in evidence. This
documentation, largely departmental, most prepared with apparent care and in
accordance with established practices and procedures, allows a relatively
clear understanding of the events, attitudes and policies of the time. From
time to time witnesses were able to speak to documents and the procedures and
practices that led to their creation. In many instances, this has assisted the
process of the court being satisfied that documents were reliable records of
events that occurred and of attitudes and policies of the time. |
|
15 |
Where appropriate, efforts were made by counsel for the
parties to ensure that expert witnesses were directed to evaluate the
circumstances upon which they gave their opinions having regard to the
historical context and the state of knowledge and learning at the relevant
time. |
|
16 |
The Court received into evidence copies of leading
academic texts of the time in the discipline of what would now be termed
child psychiatry. These texts addressed problems arising from the separation
of child from parent. The Court heard from Dr Keith Le Page, a psychiatrist
at the Child Guidance Clinic at times during the 1960s. Dr Le Page was able
to give evidence as to the state of medical knowledge at relevant times
including awareness of attachment theory and of the consequences of the
rupture of mother-child attachment. |
|
17 |
Books, articles, conference minutes and other documents
explaining the underlying policy of applicable legislation were received into
evidence, providing background to assist in an understanding of the
legislation consistent with the views of the mid-1950s and 1960s. |
|
18 |
It is convenient in these reasons to first address the
relationship between the State, its statutory bodies corporate, and relevant
government departments. To understand the plaintiff’s claims and the
relationship between the parties, it is necessary to undertake an overview of
the legislation that governed those relationships. This review will canvass
the legislative history both leading to and following the critical events. |
|
19 |
Next a broad chronology of events will be outlined. This
chronology was subject to little challenge and draws on contemporaneous
documents. A more detailed discussion of particular events will be undertaken
later in these reasons. |
|
20 |
A detailed review of the legislative framework against
which the relevant events occurred and the general government policies then
in place will be addressed before the making of primary findings. Those
findings are best addressed once the legislative regime has been laid out. It
will then be convenient to consider each of the causes of action. |
|
21 |
It may be helpful to note some points pertaining to the
terminology used throughout these reasons. The first relates to the use of
the words "taking", "removal", "placement" and
"fostering". The departmental documents describe the plaintiff as
being "taken" from hospital. When I refer to the plaintiff as being
"removed" from his family, I am describing the process whereby the
plaintiff was taken from the Children’s Hospital and without his parents’
knowledge or consent being given to Martha. I sometimes also describe the
plaintiff as being "placed" with the Davies family. All of these
and like expressions describe the plaintiff being removed from hospital and
given to Martha, instead of being returned to his natural parents. There is
indirect evidence that the plaintiff was formally "fostered".
Martha was eventually licensed as a foster parent. The arrangement was that
Martha would have the long-term control and custody of the plaintiff to the
exclusion of his natural family. |
|
22 |
Some further points regarding terminology include the use
of Christian names in the course of these reasons. It has been convenient to
refer to the members of the Trevorrow and Davies families by their Christian
names in order to avoid confusion that could arise by having to refer to
several people sharing a common surname. However, at times throughout these
reasons the context calls for use of surnames as well. |
|
23 |
When referring to the Aborigines Act 1934-1939 (SA)
and Maintenance Act 1926-1937 (SA) I have included the years of the
Acts, in order to avoid any confusion that might arise due to the fact that
several Acts were enacted over the years with similar titles. With the exception
of the Aborigines Department, all State departments and boards have been
referred to by initialisms – APB for the Aborigines Protection Board, CWPRB
for the Children’s Welfare and Public Relief Board, and CWD for the
Children’s Welfare Department. |
|
24 |
By way of introduction it is important to have an
awareness of the government entities involved in the events the subject of
the action and their interrelationship. An issue at trial was whether certain
entities were emanations of the State. I have concluded later in these
reasons that all relevant entities in particular the APB and the CWPRB, were
emanations of the State and that accordingly the State was and remains
responsible for their actions and conduct. I consider the terms
"emanation", "instrument" and "agent" to be
largely interchangeable, and their use in these reasons varies only according
to the context in which they are used. |
|
25 |
The APB, a body corporate under the Aborigines Act
1934-1939, had an overseeing or executive responsibility in dealing with
a number of indigenous issues. The secretary of the APB was also the
permanent head of the Aborigines Department. He was a Crown employee
appointed pursuant to and subject to the Public Service Act 1936-1938 (SA).
The conduct of the APB’s affairs was primarily carried out by officers of the
Aborigines Department at the direction of the permanent head of the
Department, and through him, at the direction of the APB. In the early 1960s
the Aborigines Act 1934-1939 was repealed, the APB ceased to exist and
was replaced by the Aboriginal Affairs Board. The Aborigines Department
continued but was renamed the Department of Aboriginal Affairs. |
|
26 |
The CWPRB, a body corporate under the Maintenance Act
1926-1937 discharged public welfare duties generally within the State.
This board primarily discharged its responsibilities through officers of the
CWD.[6] The CWPRB and officers of the CWD had duties in regard to
the fostering of children and responsibility from time to time for indigenous
matters. As discussed in detail later, there were areas of common statutory
responsibility between the APB and CWPRB. |
|
27 |
Another government entity, the Child Guidance Clinic,
appears to have operated as part of the Health Department of South Australia
and had responsibilities with regard to children generally, including
indigenous children. The documents from the time establish that referrals were
made to the Child Guidance Clinic from a number of government agencies
including the CWD, the Aborigines Department, the Department of Aboriginal
Affairs and the Education Department. |
|
28 |
A medical officer at the Child Guidance Clinic, Jeannie
Moffatt, undertook responsibilities toward the plaintiff. It appears that the
initial referral to the Child Guidance Clinic was made in 1966 by Barbara
Reiff, an officer of the Department of Aboriginal Affairs. Dr Moffatt
continued to have contact with the plaintiff until early 1970. |
|
29 |
Relevant to the present proceeding is a consideration of
whether the plaintiff’s removal from the Children’s Hospital and placement
with Martha were undertaken at the immediate direction of the Aborigines
Department with the authority of the APB, or in the alternative, in
circumstances ratified and adopted by the APB, or otherwise. |
|
30 |
The licensing of Martha as a foster mother was apparently
undertaken by the CWD, however, maintenance payments to Martha were
authorised and made by the APB. Officers of the Aborigines Department dealt
with inquires by the plaintiff’s natural mother with respect to the
plaintiff. Later, when the plaintiff presented behavioural problems, he was
referred to the Child Guidance Clinic by the Department of Aboriginal Affairs
who appeared to have accepted the responsibility for the placement with the
Davies. The return of the plaintiff to his mother in 1967 appears to have
been undertaken at the direction and under the control of the Department of
Aboriginal Affairs in consultation with the Child Guidance Clinic. In 1968,
following a court order, the plaintiff was placed in the care of the Minister
of Social Welfare and accordingly became a State child. |
|
31 |
Before coming to discuss the events giving rise to this
action, as earlier observed, it is necessary to put those events into the
context of the statutory scheme addressing Aboriginal children at the time.
Aspects of this scheme will be discussed in detail later in these reasons. |
The Statutory Scheme
|
The statutory scheme in place at the time of the
plaintiff’s removal from his natural family entrusted two bodies with roles
to play in ensuring that Aboriginal children in need were properly cared for
– the APB and the CWPRB. |
|
|
33 |
Pursuant to section 7 of Aborigines Act 1934-1939,
the APB had the following duties: |
(a) to apportion, distribute, and apply, as seems most fit, the moneys at
the disposal of the board:
(b) in its discretion, to apply part of the moneys at its disposal in the
purchase of stock and implements to be loaned to aborigines to whom land has
been allotted under section 18, and may supply the same accordingly either
without payment or on such terms as are approved by the board, and no person
shall, except with the approval of the board, acquire any title to any goods or
chattels so loaned as aforesaid:
(c) to distribute blankets, clothing, provisions, and other relief or
assistance to the aborigines:
(d) to provide, as far as practicable, for the supply of food, medical
attendance, medicines, and shelter for the sick, aged, and infirm aborigines:
(e) to provide, when possible, for the custody, maintenance and education of
the children of aborigines:
(f) to manage and regulate the use of all reserves for aborigines:
(g) to exercise a general supervision and care over all matters affecting
the welfare of the aborigines, and to protect them against injustice,
imposition, and fraud.
|
34 |
The APB was the legal guardian of Aboriginal children.
Section 10 provided: |
(1) The board shall be the legal guardian of every aboriginal child,
notwithstanding that any such child has a parent or other relative living,
until such child attains the age of twenty-one years, except whilst such child
is a State child within the meaning of the Maintenance Act, 1926.
and further provided:
(2) Every protector shall, within his district, be the local guardian of
every such child within his district.
(3) Such local guardian shall have and exercise the powers
and duties prescribed.
|
35 |
Section 17(1) of the Aborigines Act 1934-1939 provided
that the APB could place an Aboriginal person within a reserve or Aboriginal
institution: |
The board may cause any aborigine to be kept within the
boundaries of any reserve or aboriginal institution, or to be removed to and
kept within the boundaries of any reserve or aboriginal institution, or to be
removed from one reserve or aboriginal institution to another reserve or
aboriginal institution, and to be kept therein.
It should be immediately observed that this subsection had no part to play
in the removal or placement of the plaintiff.
|
36 |
Under the legislative scheme in place, the CWPRB, pursuant
to the Maintenance Act 1926-1937, bore the statutory
responsibility for caring for children in need, whether Aboriginal or
otherwise. |
|
37 |
The legislative scheme envisaged that the two boards would
work together. Importantly, section 38 of the Aborigines Act 1934-1939 provided
that the APB and the CWPRB were authorised to work in concert to effect the
removal of an Aboriginal child according to law: |
The [APB] may, with the approval of the [CWPRB] constituted
under the Maintenance Act, 1926, commit any aboriginal child to any institution
within the meaning of the Maintenance Act, 1926, under the control of the
[CWPRB], to be there detained or otherwise dealt with under the said Act until
such child attains the age of eighteen years.
As will become evident, the section 38 process was a cause of ongoing
tension between the boards.
|
38 |
Evidence before the Court demonstrated that the State, its
emanations the APB and the CWPRB, relevant Ministers and officers of the
Aborigines Department and the CWD, were all of the understanding that the
State was powerless to remove Aboriginal children from their parents absent compliance
with relevant provisions – sections 17 and 38 of the Aborigines Act
1934-1939, and section 102 of the Maintenance Act 1926-1937 or
with the consent of the child’s parents. |
|
39 |
Section 102 of the Maintenance Act 1926-1937
provided that where a court was satisfied that the child was destitute or
neglected, it could: |
(a) order such child to be forthwith sent to an institution, to be there
detained or otherwise dealt with under this Act until such child attains the
age of eighteen years; or
(b) by an order in writing place such child in the custody and under the
control of the [CWPRB] until such child attains the age of eighteen years.
Crown Solicitors’ Advices
|
On |
These powers, however, are of a general nature and of
themselves are not, in my opinion, specific enough to authorise the removal of
aboriginal children from their parents.
|
41 |
Notations appear on the minute that evidence the following
events. On |
To the [APB]
The Crown Solicitor has advised that the [APB] has no authority to remove
aboriginal children from their parents except by concerted action with the
[CWPRB], as provided in section 38 of the Aborigines Act, 1934-39.
|
42 |
Accordingly, it is clear that by August 1949, the
Attorney-General, the Minister of Works, the chairman and secretary of the
APB and the APB itself were all aware of the Crown Solicitor’s advice, that,
beyond the procedures prescribed in section 38 of the Aborigines Act
1934-1939, the APB did not have the power to remove Aboriginal children
from their parents. As earlier observed, the secretary of the APB was also
the head of the Aborigines Department. As a result, the Department was aware
of the advice of the Crown Solicitor. |
|
43 |
Evidence before the Court revealed that the CWPRB was
unwilling at relevant times to accept and perform its statutory role in
providing for neglected or destitute Aboriginal children. |
|
44 |
In November 1953, the chairman of the CWPRB advised the
Honourable Chief Secretary that a court had placed an Aboriginal child under
the custody and control of the CWPRB and that this was a problem for the
CWPRB. The perception of the chairman of the CWPRB was that various
authorities had tried to avoid problem Aboriginal children by placing them
under the guardianship of the CWPRB. The CWPRB had resisted because it considered
it would be undesirable to place "difficult, native children" into
its institutions because the institutions were not considered suitable. The
chairman of the CWPRB observed that the mixing of white and
"native" children was not always successful and that staff at the
institutions might be upset through having to handle "native"
children. The CWPRB considered the APB should be responsible for such
children. The chairman requested the Chief Secretary to refer the matter to
the APB for appropriate action.[7] |
|
45 |
In or about May 1954 the secretary of the APB noted that
it was well known that the CWD would not accept Aboriginal children except in
extreme cases.[8] As a result when an Aboriginal child was reported as
neglected, uncontrolled or orphaned the secretary of the APB stated that he
had been "forced to beg religious organisations to accept these children
into their Homes".[9] |
|
46 |
In June 1954, the CWPRB sought advice from the officer in
charge of its Prosecution Branch regarding its duty to Aboriginal children
living under unsatisfactory circumstances. The board was advised that it was
justified in taking the attitude that the welfare of Aboriginal children was
a matter for the APB at least in the first instance and not for the CWPRB. |
|
47 |
This tension between the two boards prompted the
Attorney-General to again seek the advice of the Crown Solicitor. In a minute
to the Attorney-General dated 13 August 1954 and entitled, "Aboriginal
Children – Children’s Welfare and Public Relief Board and Aborigines
Protection Board", the then Crown Solicitor, R. R. St. C. Chamberlain
confirmed the 1949 advice provided by Mr Hannan. Mr Chamberlain gave the
following advice: |
Sections 5 and 7 of the Aborigines Act, 1934-39, provide
that the [APB] is charged with the duty of controlling and promoting the
welfare of aborigines, particularly in the matters mentioned in section 7 of
that Act, and section 10 provides that the [APB] shall be the legal guardian of
every aboriginal child until he attains 21 years of age, except whilst such
child is a State child within the meaning of the Maintenance Act.
Primarily, therefore, the [APB] should provide for the control, welfare,
maintenance and education of aboriginal children.
Destitute, neglected or uncontrolled children
An aboriginal child should not become destitute or neglected, because the [APB]
is its legal guardian and charged with the duty of providing for its welfare,
and if the Board’s attention is drawn to a particular case of apparent
destitution or neglect, no doubt the Board would take steps to relieve the
situation.
If, however, the [APB] cannot, or does not take action, or if, despite that
Board’s efforts, an aboriginal child became destitute, neglected or
uncontrolled, I see no legal reason why action should not be taken under
section 102 of the Maintenance Act, 1926-1952. The Aborigines Act does not
contain similar powers.
Illegitimate children under 7 years of age
The [APB] has a general duty under its Act "to provide, when possible, for
the custody, maintenance and education of the children of aborigines"; see
section 7(e). It has no express power to enter the homes of aboriginal
children, such as the [CWPRB] has, pursuant to section 16(1) IV[10] and section 189[11] of the Maintenance
Act, 1926-1952. The [APB’s] powers with regard to the custody
and control of aboriginal children are limited to removing children to an
aboriginal reserve or institution under section 17(1) and to the removal of
certain children, with the consent of the [CWPRB] to an institution within the
meaning of the Maintenance Act pursuant to section 38 of the Aborigines Act.
There is nothing in the Aborigines Act to prevent the [CWPRB] exercising its
powers under section 16(1) IV and section 189 of the Maintenance Act with
regard to aboriginal illegitimate children under seven years of age except
where such children may have been removed to an aboriginal reserve or
institution.
Children under seven years of age, living with other than near relatives.
Section 188, Maintenance Act.
In these cases the [CWPRB] may exercise its powers under section 188 of the
Maintenance Act subject only to the exercise by the [APB] of its powers under
Sections 17(1) and 38 of the Aborigines Act.
[emphasis added]
|
48 |
On 24 August 1954, the CWD forwarded to the APB a copy of
the opinion of the Crown Solicitor, Mr Chamberlain, dated 13 August 1954, and
reiterated that the CWPRB "is not anxious, for several reasons, to have
aboriginal children in our Departmental Institutions housing neglected and
destitute children"[12]. |
|
49 |
The effect of this attitude was reflected in the minutes
of the APB dated 15 December 1954 when the case of an apparently neglected
Aboriginal child was drawn to the attention of the APB by the CWD but neither
took action, and the child was returned to her mother. The minutes of the APB
record: |
The Secretary reported that information had been received
from the Northfield Infectious Diseases Hospital that a part-aboriginal
child..., had been admitted to hospital smothered with impetigo sores and
apparently neglected. The Medical Officer considered it was wrong for the child
to be returned to her parents. A communication had been received from the [CWD]
suggesting that the case apparently would be one with which this Department
would be interested and able to make the necessary arrangements for the care of
the child. It was noted that no aboriginal child can be considered to be
neglected or destitute as the [APB] is the legal guardian of any such child,
and should a child be found in the condition above-mentioned it would be
necessary for the [APB] to take steps to correct the position. As Colebrooke
Home and Umeewarra Mission are already overcrowded there is no other Home in
which the child could be accommodated. It was agreed that no action could be
taken and that the child should be returned to her mother at Point McLeay.
|
50 |
In January 1955, the deputy chairman of the APB considered
that it was the duty of the APB to see that Aboriginal children were provided
for, and not necessarily to provide for them, and that it was the duty of the
CWD to take charge of neglected or orphaned part-Aboriginal children. |
Relationship between the APB and
the CWPRB
|
51 |
In about January 1956, the secretary of the APB and the
chairman of the CWPRB met to discuss neglected and delinquent Aboriginal
children. As a result, the secretary of the APB prepared a report for the
consideration of the CWPRB, explaining that the legislation clearly intended
that where, despite the best efforts of the APB, Aboriginal children were
destitute, neglected or uncontrolled those children were the responsibility
of the CWPRB. The CWPRB was pressed to accept as State children all
destitute, neglected and uncontrolled Aboriginal children, as provided in
existing legislation. The recommendation to the CWPRB was that the provisions
of section 38 of the Aborigines Act 1934-1939 were to be invoked in
the case of neglected, destitute or uncontrolled "full blooded
aboriginal children" and the provisions of the Maintenance Act
1926-1937 were to be invoked in the case of "part aboriginal"
children. |
|
52 |
It is clear from minutes of the secretary of the APB, that
it was his understanding that the APB did not have the power to remove
destitute or neglected children from their parents. On 3 February 1956, in a
minute from the secretary of the APB to the chairman of the CWD, the secretary
advised: |
The Aborigines’ Act 1934/39 charges the [APB] with the duty
of controlling and promoting the welfare of aborigines and provides that
"each member of the [APB] shall be the legal guardian of every aboriginal
child.....until the child attains the age of 21 years, except where such child
is a State child within the meaning of the Maintenance Act". Provision is
made for the [APB] to expend monies placed at its disposal for the custody,
maintenance and education of the children of aborigines but does not provide
for their removal to an institution or any place where they could be maintained
or educated. The Crown Solicitor has ruled that, although the [APB] are the
legal guardian of aboriginal children the fact of their being so does not
permit them to remove the children from their parents whether neglected or not.
[emphasis added].
|
53 |
The secretary of the APB further stated in the minute of 3
February 1956 that despite the advice of the Crown Solicitor with respect to
section 17, the secretary did not consider that the APB had the power to
remove Aboriginal children and place them within the boundaries of an
Aboriginal reserve: |
Section 17(1) of the Act does, however, provide that
aborigines may be removed and kept within the boundaries of an aboriginal
reserve or institution, and the Crown Solicitor is of the opinion that children
could be removed from their parents under this Section, but obviously this
was not the intention of the legislation.
The secretary continued:
Other matters, such as the [APB] being charged with the duty
of providing for the custody, maintenance and education of the children of
aborigines are, according to the Crown Solicitor, of a general nature and not
specific enough to authorize the removal of aboriginal children from their
parents, regardless of the fact that Section 42(1) III provides for regulations
to be proclaimed enabling an aboriginal child to be sent to or detained in an
aboriginal institution or industrial school.
...
It would appear that the legislation concerned clearly intended destitute,
neglected or uncontrolled aboriginal children to be the responsibility of the
[CWPRB], otherwise provision would have been made in the Aborigines’ Act for
the removal of such children, and the power to transfer the control of such
children to the [CWPRB] would otherwise not have been included.
In view of the fact that the Aborigines’ Act does charge the [APB] with the
duty of controlling and promoting the welfare of the aborigines and in
providing that the [APB] shall be the legal guardian of every aboriginal child,
it would appear that primarily the [APB] should provide for the control,
welfare, maintenance and education of aboriginal children which in effect it
does. Where, however, a child is destitute, neglected or uncontrolled, and any
action taken by the [APB] does not, despite the [APB’s] effort, improve the
situation, which frequently happens, then it would seem that the [CWPRB] should
approve of the transfer of control of the child to [the CWPRB]. Unfortunately,
the Crown Solicitor has ruled that an aboriginal child should not become
destitute or neglected because of the fact that the [APB] is its legal guardian
and charged with the duty of providing for its welfare. Although legally this may
be the position, any practical action taken by the [APB] through the officers
of this Department rarely improves the situation.
The [APB] have on many occasions discussed the question of destitute, neglected
or uncontrolled aboriginal children and finds with their limited authority that
it is quite impossible to adequately or satisfactorily care for such neglected
children.
|
54 |
On 18 April 1956, the chairman of the CWPRB responded to
the minute of the secretary of the APB: |
The [CWPRB], after carefully considering your apparent
difficulties in adequately controlling and caring for aboriginal children (vide
your minute herein of the 3rd February), is of the opinion that
these children should be provided for in the following way.
The part aboriginal, whether exempted or not, who is living a fully independent
life, earning and paying rates and taxes, should be accepted into our community
life. Neglected or destitute children from this group should be subject to
the same court orders as other children and should continue to be placed, when
necessary, in our departmental institutions with white children.
All other destitute or neglected aboriginal or part aboriginal children should
continue to be the responsibility of the [APB]. In some cases, eg myall
aboriginals living a tribal life, etc, it would be unthinkable to remove the
children from their parents. In others, it seems hardly right to expect this
Department to admit these children into departmental institutions when it has no
power or authority in the matter of improving their usual living conditions.
So it is suggested and preferred that the [APB] endeavours to establish
institutions for the purpose and seek any legislative authority deemed
necessary to adequately control and care for these destitute or neglected
aboriginal children.
[emphasis added]
|
55 |
In conformity with the chairman of the CWPRB’s minute of
18 April 1956, on 13 June 1956, the CWPRB notified the APB that the latter’s
request to have an Aboriginal child committed to one of the institutions run
by the CWPRB was refused. |
|
56 |
The secretary of the APB noted that the matter had reached
a stage where urgent action was required because the Aborigines Department
had limited resources and the CWPRB refused to accept Aboriginal children
because they considered those children to be the responsibility of the APB.
He recommended that the matter be referred to the Minister. |
|
57 |
At a special meeting of the APB on 18 May 1956, the APB
agreed the whole matter should be referred to the Minister of Works who may
wish to discuss these matters with the Minister in control of the CWPRB and
submit the matter to Cabinet. |
|
58 |
On 18 May 1956, the secretary of the APB wrote to the
Minister of Works to raise the CWPRB’s refusal to accept Aboriginal children
into its institutions and to seek urgent assistance given the invidious
position that the APB, as the legal guardian of such children, was placed in as
a result. The secretary concluded: |
It is essential and an urgent matter that either one of the
Boards concerned or, to some extent, both of them, accept the responsibility of
caring for these unfortunate children. My Board have agreed to forward this
matter for the consideration of the Honourable Minister as, to a large extent,
it is a question of Government policy. The Honourable Minister may wish to
discuss these matters with the Minister in control of the CWPRB and/or
submit this matter to Cabinet for an expression of Government policy.
|
59 |
The unsuccessful attempts on the part of the APB to press
the CWPRB to accept responsibility for neglected or destitute children
continued. At the same special meeting the APB agreed that the provisions of
section 38 of the Aborigines Act 1934-1939 should be invoked in
relation to a child who had been reported as neglected.[13] However, as earlier observed, the CWPRB refused to approve
the committal of the child. Instead the chairman of the CWPRB wrote to the
secretary of the APB and advised: |
That my Board, after considering the matter, decided not to
approve of the committal of this child to a Departmental Institution.
This ruling is in conformity with my Board’s previous decision on the general
question of the committal of Aboriginal children to this Department’s
institutions. This was advised to you on the 18th April last ...
|
60 |
On 20 June 1956, the secretary of the APB reported this
refusal by the CWPRB to approve the child’s committal and advised that the
child had been removed from her parents and "temporary
arrangements" were made for her to be admitted to the Methodist Babies
Home. The Minister was also advised of these arrangements and provided with a
copy of the letter from the CWPRB, but nothing happened. |
|
61 |
In its annual report to Parliament for the year ending 30
June 1956, the APB pressed its opinion that the CWPRB should act in the case
of neglected Aboriginal children.[14] |
|
62 |
Five months after the APB had raised this issue with the
Minister of Works and in the absence of any response, the APB again raised
the matter with the Minister. This time it was in connection with a child who
had been committed to the care of the CWPRB by the Education Department for
being habitually absent from school. The CWPRB had asked the APB to make a
contribution to the maintenance of the child.[15] |
|
63 |
On 30 October 1956, the secretary of the APB wrote to the
secretary of the CWD, asking that the CWD place a neglected child. The
secretary of the CWPRB replied that the child could not be admitted to one of
their institutions. Subsequently, the secretary of the APB wrote to the
Minister informing of the invidious position with which the APB was
confronted in light of the CWPRB’s refusal to perform its statutory role and
again requesting governmental action: |
The [APB] have previously drawn attention to the fact that there
are neglected aboriginal children throughout the State for which the [APB]
is responsible, but because of lack of legislation, no action can be taken
to correct the position.
The [APB] has no power to remove children from their parents but the
Aborigines Act, 1934-39 does provide that the [APB] may, with the approval of
the [CWPRB], commit any aboriginal child to any institution within the meaning
of the Maintenance Act. Unfortunately, the [CWPRB] will not approve of such
transfers being made.
Recently information was received in this office that [blank], born on 6th
September 1955, the illegitimate daughter of [blank] and supposedly [blank] was
in the Port Augusta Hospital in an advanced state of malnutrition. A few weeks
ago, the Senior Welfare Officer of this Department saw this child during a
visit to the mother’s camp and impressed upon the mother the necessity of
properly feeding and caring for the child. The mother was also warned that
unless the child received more care, it would be placed in a home.
The Port Augusta Hospital Authorities state that the child was received at the
Hospital in a shocking state and should not, under any circumstances, be
returned to her mother.
Following this information, the [CWPRB] were approached requesting that the
child be admitted to one of their institutions. The Secretary of the [CWPRB]
has now replied that the child cannot be admitted.
My Board are desirous that its recommendation in regard to the care and control
of neglected aboriginal children should be submitted to the Government for a
direction as to whether the [APB] or the [CWPRB] should accept the
responsibility for these children.
[emphasis added]
|
64 |
This minute from the secretary of the APB discloses that,
in the opinion of the APB itself, the APB did not, under the Aborigines
Act 1934-1939, possess the power to remove Aboriginal children from their
parents, regardless of the circumstances, without the approval of the CWPRB.
In the secretary’s view, the APB required such power in order to properly
execute its role and duty as the legal guardian of Aboriginal children, but
it is clear from the above that in his view, the APB lacked such power. |
|
65 |
As a result of this refusal on the part of the CWPRB to
co-operate and without having received a response to the earlier minutes, the
secretary of the APB wrote again to the Minister, reiterating the request
"for a direction as to whether the APB or the CWPRB should accept the
responsibility of these children". In turn, the then Acting Minister of
Works referred the matter to Cabinet. The matter was then referred by Cabinet
to the Attorney-General. |
|
66 |
The Minister of Works wrote to the secretary of the APB on
21 November 1956 and asked that he confer with the CWPRB and with the
Parliamentary Draftsman. |
|
67 |
In January 1957, the secretary of the APB reported to the
Minister of Works that he had conferred with the CWD. In the course of his
report he added: |
I have conferred with the Parliamentary Draftsman as to
whether legislation would be required to enable the [APB] to establish
institutions for aboriginal children and beg to advise that the Parliamentary
Draftsman is of the opinion:-
(1) While the [APB] probably has the implied power to establish institutions
for aborigines or special classes of aborigines, the Act is not clear at this
point and if it is desired to establish such institutions, it is desirable to
provide expressly for such an establishment by legislation.
(2) As regards compulsory separation of neglected aboriginal children from
their parents and their detention in institutions, it would be desirable to
make the powers clear.
(3) The [APB] is of the opinion that the Juvenile Court should have power to
order the detention of children in aboriginal children’s institutions but this
cannot be done without additional legislation.
My Board are most anxious th