What is ‘truth-telling’ and why does it matter to Indigenous Australians?

How do you hold a commission into telling the truth?

As the 20th annual Garma Festival focuses on truth-telling and the potential it has for Indigenous Australians, NITV takes a deeper look at what a truth telling commission is, and why this discussion is happening  now.

What is ‘truth-telling’?
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This may seem like a stupid question to ask, but in this context, the concept refers to the idea of a truth-telling commission — a reflection or investigation of incidents that caused great upheaval through the memories of those who were impacted by the events and those who caused the damage.

Truth-telling commissions work in a similar way to royal commissions: victims, their families and alleged perpetrators, testify about what they witnessed. Instead of being cross-examined by a lawyer, a committee or individual representing the commission listens to the testimony and asks questions. The evidence is then reviewed and correlated.

In the past, some commissions have gone further and judged whether the testimony was A) truthful, and B) the entirety of what the witnesses know.

After assessing the testimonies and other evidence as a whole, the committee tables their conclusions. The commission’s findings are then compiled in a report, and presented to the public. Over the years, there have been variations of this formula in different countries and organisations around the world.

They have been held mostly by governments after a period of turmoil or events that could be considered serious breaches to human rights, especially in cases where going to the International Criminal Court may not be an option. There have been instances where the United Nations and other institutions have held their own independent truth-telling commissions, which were not supported by the organisations, individuals or States being investigated.

Truth-telling commissions originated in Africa, but have been adopted across North, Central and South America. The first truth commission took place in Uganda in the 1970s; then they became more prominent and frequent in the 1990s and the 21st Century.

The Truth Commission: Commission of Inquiry into the Disappearances of People in Uganda, was created following strong pressure from the public to investigate the actions of then President Idi Amin Dada. The commission lasted three years. Its final report was presented to Amin, but sadly, it never saw the light of day, as Amin reportedly destroyed the only copy of the report.

Since then, there have been many truth-telling commissions held across the globe. One of the most well-known examples was the Truth and Reconciliation Commission, held in South Africa after the end of the Apartheid. Its final report resulted in both convictions and acquittals for crimes committed during that period. Despite the criticisms it drew from then president Nelson Mandela and others from all sides, the commission’s final report was seen as a positive step towards the reconciliation of a de-segregated South Africa.

It is hoped that with the ratification of the Uluru Statement of the Heart, Australia will be included in the list of nations to undergo a similar process of deep self-reflection.

Why is it an important issue for Indigenous Australians?
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The need for justice and truth-telling was raised consistently throughout the Referendum Council’s regional dialogues that preceded the historic Uluru convention of First Nations Peoples in May 2017. Attendees unanimously ratified the Uluru Statement from the Heart, which recommended a truth and justice commission as a pathway for both Indigenous and non-Indigenous Australians to confront their difficult past.

The Referendum Council’s final report rejected the idea of symbolic constitutional recognition of Indigenous peoples, and made three key recommendations for meaningful reform:  the proposal of a constitutionally-enshrined Indigenous voice to parliament, a Makarrata (a Yolgnu word that means ‘the settling of differences’, ‘peace-making’ and Treaty),  and the creation of a truth and justice commission.

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According to the Uluru statement, the commission would “supervise a process of agreement-making between government and First Nations and truth-telling about our history”. The commission is seen as a conduit to Treaty, as well as an opportunity for Australia to finally learn about its hidden history.

The Turnbull government criticised the Referendum Council’s proposals, stating that they were ‘big ideas’ that ‘lacked detail’. After their final report was tabled, the government rejected the proposal for an Indigenous voice to Parliament, likening it to a ‘third chamber of parliament’, but didn’t outright deny the possibility of a Makarrata or a truth and justice commission. A Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples was created to assess a way forward.

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In their interim report released in July, the Joint Select Committee said that “some evidence suggests that no further progress can be made on any kind of recognition without truth-telling”. The committee is currently looking at the evidence presented for a truth-telling commission before presenting its final report later this year.

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Why is truth-telling the theme for this year’s Garma Festival?
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One year on from the Uluru Statement from the Heart, the idea and potential of a Makarrata and a truth and justice commission is still on the hearts of minds of Indigenous Australians.

Last year, the Garma festival focused on discussing Makarrata as the main theme of the event.  This year, they have decided to continue the conversation by focusing on the other, often under-discussed aspect of how a truth and justice commission could work.

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Garma Festival organiser and Yothu Yindi Foundation CEO Denise Bowden said: “The telling of truth is essential in paving a way forward that can bring the nation together and open up the possibility of a truly substantial settlement”.

“These conversations can be confronting to hear and challenging to conduct, but we will continue to search for answers to the difficult questions we face.”

The theme will be a major influence over the discussions during the Garma Key Forum held at the festival.

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How do truth commissions work?
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There is no exact format to determine how a truth-telling commission must be run, unlike a Royal Commission or other types of formal investigations.

That provides the possibly of making the process culturally sensitive, which cannot always be achieved through other procedural formulas.

Often, truth commissions are conducted by a committee or panel that hears the stories of both victims and alleged perpetrators. Questions aren’t asked by lawyers, but instead either by the committee or a facilitator acting on their behalf. As testimonies often relate to highly sensitive matters, questions and proceedings are often gentler in their approach compared to court hearings.

After a person’s testimony has been heard, the committee may assess the evidence and decide if the individual can leave the process or if they have to continue testifying further. If they believe the individual has told their complete truth, they may be dismissed.

Whether the testimonies are made open to the public or kept private depends on the nature of the commission. While some commissions have held their hearings behind closed doors to protect the identities of witnesses, others such as the Truth and Reconciliation Commission in South Africa, made them open to the public and were even broadcast on national television.

The findings of truth commissions are often released to the public, although some in the past have been kept confidential, such as the Truth Commission: Commission of Inquiry into the Disappearances of People in Uganda and similar commissions in Zimbabwe and the Philippines.

Truth-telling commissions are designed to replace formal prosecution, with immunity offered as an incentive for people to testify. This approach helps ease the stress for victims and dispel fears for alleged perpetrators who wouldn’t agree to testify in a formal court room proceeding otherwise.

The Uluru statement provides very little detail on how exactly the truth and justice commission in Australia would be run. The Referendum Council’s final report indicated they were not in a position to make a specific recommendation, as this fell outside their terms of reference.

Most of the conversation in the wake of the Uluru convention focused on potential treaty negotiations rather than truth-telling.

The Garma Festival 2018 will hopefully provide a clearer image of what this part of the commission could look like.

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Case Study: Truth and Reconciliation Commission – South Africa, 1995
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One of the most notable examples of a truth telling commission is the Truth and Reconciliation Commission (TRC) which began in South Africa in 1995, shortly after the end of Apartheid. Led by Reverend Desmond Tutu, the commission looked into the crimes committed during the policy. Both victims and perpetrators testified.

The success of the TRC is still debated. Some feel that it gave the opportunity to share the stories of what occurred over the three decades of the Apartheid regime. Others feel that it went over the top, or did not deal with the real issues of the era.

The TRC worked in an unusual manner, compared to previous truth commissions.

The commission began in London in April 1995, before moving all proceedings to Cape Town. The panel heard testimonies of volunteers about their actions during the Apartheid. They then deemed whether the witness had told the whole truth. If they had, they were free to leave. If they had not, they were made to continue testifying.

The testimonies came from members of government institutions who enforced the policy, as well as those who were fighting against it.

Another point of difference was that hearings were open to the public. Photography, video and broadcast were also permitted, for the first time in history.

The committee initially agreed the process would not result in any convictions, and those who testified were given immunity. However, members of the subcommittee of the Truth and Reconciliation committee disagreed.

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After reviewing the evidence, charges were laid for offences ranging from assault to murder. This led to several high-profile cases in the years to follow, which resulted in both acquittals and convictions. The commission also led to acquittals of those who had been unfairly arrested and convicted of crimes during the Apartheid era. Most notably, a group of black men who were wrongfully convicted of the murder of American student Amy Biehl.

The final report criticised the actions of both sides for their actions during Apartheid.

Upon receiving the final report in 1998, Mandela said: “I accept the report as it is, with all its imperfections, as an aid that the TRC has given to us to help reconcile and build our nation”.

Can a Truth-Telling Commission happen in Australia?
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Yes, but it isn’t likely to occur in the near future.

Any further decisions on the Uluru Statement, including a Makarrata, won’t be made by the Turnbull Government until the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples’ final report is delivered later this year.

If the report recommends proceeding with a commission, it’s not likely to start until next year’s federal election.

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The exact format of the commission, and how it would be conducted alongside the proposal of a Makarrata, is yet to be determined. It is also unknown if the truth-telling commission would be open to the public, be broadcast or kept behind closed doors.

However, a truth-telling commission can be one held even without the federal government’s approval.

The United Nations has held them in the past, most notably Commission on the Truth for El Salvador in the 1990s.

The commission’s success was limited, as the government of El Salvador granted immunity to anyone involved in alleged criminal activity in the weeks leading up to the final report’s delivery.

It could be possible for an Indigenous organisation or body to hold their own truth-telling commission, asking for statements from the public themselves, rather than waiting on the formal procedure through a Makarrata. But this seems unlikely. So far, no organisation has volunteered to initiate one, and no one from the Indigenous community has made this suggestion publicly — at least not yet.