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Drawing history into the present

Victoria takes up the challenge of truth-telling

Harry Hobbs 16 March 2021

Wurundjeri and Woiwurrung elder Aunty Joy Wandin Murphy, First Peoples’ Assembly co-chair Geraldine Atkinson, deputy premier James Merlino, Aboriginal affairs minister Gabrielle Williams and assembly co-chair Marcus Stewart at the announcement of the Yoo-rrook Justice Commission last Tuesday. Simon Schluter

 


It’s almost fifty years since the world’s first truth commission — formally known as the Commission of Inquiry into Disappearances in Uganda — was established by Ugandan dictator Idi Amin. Charged with investigating the disappearance of thousands of Amin’s enemies during the early years of his regime, its report was never made public and its findings had little impact on his bloody rule. As one account concluded, the process showed how truth commissions have the potential both to improve human rights and to thwart them.

Despite that inauspicious beginning, truth commissions became more frequent and better known during the 1980s, when the concept was picked up by Latin American states moving away from military dictatorship. In these cases, a truth-telling process was combined with amnesties or non-prosecution agreements designed to safeguard the transition to civil rule.

From that point on, the model was adapted and applied around the world by governments dealing with recent large-scale atrocities or conflict as part of their transition to democracy. They increasingly came to be seen as a critical mechanism for tackling (and redressing) human rights violations while restoring social and institutional trust. By 2016, at least forty national truth commissions had been set up, and by one count more than seventy.

To that number can now be added Victoria’s Yoo-rrook Justice Commission (named for the Wemba Wemba/Wamba Wamba word for “truth”), Australia’s first comprehensive process of truth-telling. The commission was foreshadowed last year, and last week the state government and the First Peoples’ Assembly of Victoria filled in the detail. We now know that the process will be led by five commissioners and be given the powers of a royal commission, including the power to compel evidence under oath.

Pragmatically, truth commissions focus on enlarging the historical record rather than assigning criminal guilt. In circumstances where criminal trials may not be possible, gathering the truth can be a means of dealing with the past in order to change the future. Morally and politically, they are a procedurally flexible venue for victims to “tell their stories and have them officially acknowledged.”

The best-known example is the South African Truth and Reconciliation Commission, which was given the job of investigating human rights abuses under the apartheid regime. Reflecting the delicate political balance at the time, the commission was given the power to grant amnesties to perpetrators who confessed their crimes. Its hearings were broadcast live to an engrossed nation.


The Yoo-rrook Justice Commission has been compared to the South African commission, but it will be very different. Because truth commissions have emerged in states shaking off authoritarian rule, they have usually ignored Indigenous peoples and their perspectives. Only in recent years — in Canada, Sweden, Finland and Norway — have abuses against Indigenous peoples been a focus.

The Victorian commission will face three key challenges. First, because truth commissions are designed to reconcile a divided or conflicted society, they are often under pressure to affirm goals of national unity. There is nothing inherently wrong with this — all societies require common bonds of solidarity — but it shouldn’t be a reason for the commission to exclude points of view outside the political mainstream, including from Aboriginal Victorians who question the legitimacy of the state and federal governments.

Second, truth commissions are often set up by new governments to investigate human rights abuses under a previous regime. They aim to draw a line under human rights violations committed in the “past.” But this is not always possible. As the royal commission into Aboriginal deaths in custody found in 1991, “So much of the Aboriginal people’s current circumstances, and the patterns of interactions between Aboriginal and non-Aboriginal society, are a direct consequence of their experience of colonialism and, indeed, of the recent past.”

In Australia, a truth-telling process should do more than provide a richer understanding of Australia’s past — though that is of course one important outcome. Rather, it should “draw history into the present.” The original injustice may be historical, but it continues to operate today in the “very structure” of the relationship between Indigenous and non-Indigenous peoples, grounding a contemporary and prospective claim for justice.

Third, truth commissions’ traditional focus on individual human rights violations may not be appropriate in Victoria, where most perpetrators of violence are likely to have died. More importantly, Aboriginal and Torres Strait Islander peoples see little distinction between massacres, other individual acts of violence, and the broader structural forces that shape law, policy and attitudes that gave rise to and encouraged that violence. A truth-telling process can help to identify those connections for non-Indigenous Australians.

It’s also important to remember, as Gabrielle Appleby and Megan Davis have highlighted, that truth-telling “has not been absent in the relationship between Indigenous and non-Indigenous Australia.” The deaths in custody royal commission and the Bringing Them Home report on the stolen generations are two significant and well-publicised inquiries into particular kinds of abuse.

In preparing Bringing Them Home, the Human Rights and Equal Opportunity Commission conducted hearings in every capital city across the continent and in many regional centres. It heard public and private testimony from Indigenous organisations, governments, church groups, foster parents and individuals, including 535 Indigenous people who had been forcibly taken from their families and communities. Its hearings undoubtedly penetrated public consciousness and, as lawyer Anne Orford writes, its report was “widely read, with sixty thousand copies purchased in the first year of its release alone.”

But neither that inquiry nor the commission on deaths in custody led to significant legal reform. The Howard government dismissed the Bringing Them Home report’s call for an official apology and compensation, and even after prime minister Kevin Rudd apologised in 2008 no national compensation scheme was established.

Even today, the majority of the deaths in custody royal commission’s recommendations have yet to be implemented. Victoria only decriminalised public drunkenness — a key recommendation — this year, following the death in custody of Yorta Yorta woman Tanya Day. Last week alone, three Indigenous people died in custody, bringing the total number of such deaths to more than 440 since the commission handed in its report. What value is another report if it leads nowhere?

Aboriginal and Torres Strait Islander people rightly believe that truth must lead to structural reform. Whether the Yoo-rrook Justice Commission will be able to achieve this goal isn’t yet clear, but there are promising signs. The commission was developed in partnership with the First Peoples’ Assembly of Victoria, and forms part of the Victorian government’s commitment to negotiating treaties with Aboriginal Nations across the state. The First Peoples’ Assembly could also help guide the state government’s response to the Yoo-rrook Justice Commission’s recommendations. If this works, truth may lead to structural reform.

Victoria’s commission can also learn from truth-telling processes in other settler countries. Between 2008 and 2015, the Canadian Truth and Reconciliation Commission documented the history and legacy of the Canadian Indian Residential Schools system. As happened in Australia, First Nations children had been forcibly removed from their homes and families and placed in boarding schools run by the government and churches. The Canadian commission gathered testimony from almost 7000 survivors and witnesses across the country. It held seven four-day national events to raise public awareness, and invited school students to attend and learn more about their country’s history. Recognising that cultural change is needed for lasting institutional reform, the commission also issued ninety-four “calls to action” aimed at redressing the “legacy of residential schools and advanc[ing] the process of Canadian reconciliation.”

Nationally, the Victorian announcement increases pressure on the federal government to implement the Uluru Statement from the Heart. The statement called for three steps to empower Aboriginal and Torres Strait Islander peoples: a First Nations Voice embedded in the Australian Constitution; the creation of a Makarrata Commission; and a process of agreement-making and truth-telling supervised by the Makarrata Commission. The sequence is important. Without a Voice, government may decide that the legal reforms that emerge from the truth-telling process are too difficult or not sufficiently pressing.

Although the federal government’s opposition to a First Nations Voice has softened, it remains reluctant to entrench it in the Constitution. Without that constitutional backing, it will struggle to be effective, and truth-telling processes may not lead to the reform and reparation necessary to redress past wrongs. •

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