Procedural Justice, Conflict of Interest and the Stolen Generations' Case
Authors: Bessant Judith 
Published: April 2004

The Cubillo and Gunner hearing in the Federal Court of Australia possessed enormous historical, political and moral significance. The applicants' suit against the Commonwealth argued that having been removed they were then wrongfully detained, that government breached its statutory and fiduciary duties and duty of care, and the Commonwealth was responsible for the injuries and damages they incurred as a result of their removal and detention. They sought monetary compensation and exemplary damages. In response the Commonwealth government sought to have the case for damages dismissed on a variety of grounds. From the perspective of the plaintiffs, the case had the potential to set an important precedent. From the Commonwealth's perspective a lot was at stake. Beyond the financial costs, the government's reputation was at risk. The Cubillo–Gunner action tested the Australian legal system's capacity to deal justly with a critical range of moral, historical and political issues raised by the ‘stolen generations’. In his judgment delivered on 11 August 2000, O'Loughlin J dismissed each of the claims for damages by Lorna Cubillo and Peter Gunner.

In this article attention is given to aspects of the case that have not yet received due consideration. It is argued here the Commonwealth government had an overriding resolve to win the Cubillo–Gunner case, which sat incongruously with the principle and practice of the federal government as a ‘model litigant’. I consider whether the Commonwealth breached those standards in respect to three central elements of the model litigant standards — namely (1) the exercise of proportionate power, (2) the over‐reliance on technical defences, and (3) a proper regard for accepting a responsibility to administer justice and fair play.

I ask whether the appointment of Meagher as the Commonwealth's leading counsel was in the public interest? The case is put that Meagher had a conflict of interest relating to his own biography which connected to the HREOC report on the ‘stolen generations’ in general and the Cubillo–Gunner case in particular. Meager is the son of a man deeply implicated in the politics of Aboriginal affairs during the period under question. (Meagher's father was Chairman of the Aborigines Welfare Board and Minister for Aboriginal Affairs in Victoria until 1972.)

Meagher junior was by his own public admission concerned about the findings of the HREOC report and its implications for his father's reputation. He felt it dishonoured his father's name while also sullying the standing of his father's contemporaries. Meagher indicated he believed the case must not be allowed to set a precedent. The public evidence on display in these comments reflects a hostility towards child removal policies which raises questions about the suitability of Meagher's appointment as counsel. As Meagher himself pointed out, he wondered whether his involvement in the case was ‘inappropriate for counsel’ and ‘possibly contrary to the client's interest’, but later decided it was not. His appointment raises questions about the Commonwealth's conformity to the model litigant standards.