Published online by Cambridge University Press: 20 July 2009
On 11 August 2000, O'Loughlin J of the Federal Court of Australia delivered a summary of his reasons for decision in the matter of Cubillo and Anor v. Commonwealth. The judgment was much anticipated. Inevitably, it would be a sign of the times, setting the timbre of Anglo-Australia's voice on the burgeoning issue of the ‘stolen generation’ of indigenous Australians. But when O'Loughlin J announced, in respect of the forcible removal of Lorna Cubillo from her family in Phillip Creek, that no documents seemed to be available to reveal the reasons for her removal, he did so using words which would resonate; let's face it, not in the ears of every Australian, but certainly in the hearts of those few affected or concerned. In what was to be the next case in a lengthening line of mismatches between indigenous and Anglo-Australian law, O'Loughlin J's choice of words presented his listeners with an absence: ‘There is a huge void. We know that Mrs Cubillo was taken away but we do not know why.’
Picked up immediately by the Aboriginal and Torres Strait Islander Commission (ATSIC) newsroom as the title for a story reporting the result of the case, this very same dictum became a more general rubric through which to describe the experience of reading the nigh-on-500-page judgment. Emptiness, disbelief, disappointment. This was the judgment of an excessive and garrulous law which nevertheless left the applicants with, in their words, ‘a huge void’.