The Yoorrook Justice Commission Final Report: Reaction and implications

 

A wretched soul bruised with adversity,

We bid be quiet when we hear it cry;

But were we burdened with like weight of pain,

As much, or more, we should ourselves complain.

Comedy of Errors, Act two, Scene one.

The Final report of the Yoorrook Justice Commission, the Victorian Royal Commission into systemic injustice against the State’s First Peoples has this week handed down its third and final report: Yoorrook: Truth Be Told (link here). The terms of reference can be found in Appendix One; the 148 recommendations from all three reports are spelt out in Appendix Two of the final report.

In this post, I don’t propose to attempt to summarise or even distil the broad arguments nor the recommendations in any comprehensive way. Rather I wish to take as my starting point two articles in The Australian in recent days (both of which are unfortunately behind a paywall) which were scathingly critical of the report, its methods and findings. On July 4, Henry Ergas wrote an article headlined ‘Yoorrook inquiry’s ‘truth-telling’ is an egregious fraud’ (link here). This was followed the next day by a Janet Albrechtson article titled ‘Tell the truth: we’re a single sovereign country’ (link here).

Ergas’s argument was to attack the Yoorrook Commission for adopting flawed historical analysis:

Cavalierly dismissing conventional evidentiary standards, it replaces them by what it calls ‘a profound assertion of First Peoples’ ongoing sovereignty over their stories, knowledge and futures. In its proceedings, it frankly states: ‘truth telling was not about debate’ — and indeed there was none. Nor was there any testing of evidence, presentation of contrary views or attempt to engage with critics. Comfortably ensconced in the realm of naked assertion, the commission found truth because it knew it.

He proceeds from this rhetorical platform to excoriate the commission for its discussion of genocide, for inciting ‘unvarnished arrogance’, and for encouraging further demands from Indigenous interests that are increasingly extreme and poorly founded. After questioning why it is that the ‘enormous ongoing transfers’ of land, royalties and public subsidies have failed to alleviate entrenched Indigenous disadvantage, he argues the report has ignored the possibility that these transfers are enriching a privileged elite while condemning entire communities to hope-destroying social pathologies.

Albrechtson using vigorous language zeroes in on a series of targets that constitute a comprehensive list of ‘woke’ or extreme left concerns (though she doesn’t use these terms): cultural safety, genocide, decolonisation of the education curriculum, recompensing publicly funded Indigenous staff for the ‘colonial load’ they carry, while blaming ‘ivory tower academics’ for inventing the concept. The core of her argument is the report’s failure to address or accept the following proposition:

After five decades of failed policies demanding separate rights with no mention of responsibility, this report demands that we formally and permanently cement victimhood into Australian law. … This report ….is a badge of shame…

The shame, in Albrechtson’s view, extends to the Andrews Government for commissioning the report and framing its terms of reference around systemic injustice, to the many elites who have ‘indulged a separatist project’ that leaves children to mull over ‘actionable cultural rights’ rather than their rights to physical and mental safety and extends to judges who ‘indulge themselves in undermining High Court authority’ when they announce that Indigenous sovereignty has not been ceded [in acknowledgements of Indigenous elders and country].

For Albrechtson, the issue of sovereignty is at the core of her argument. She argues that the Commission’s claims that Indigenous sovereignty was exercised before the arrival of the British and was never lawfully acquired by the British under international law, is both wrong and underpins the ‘entire edifice of separatism’ asserted by the Yoorrook Commission. In her argument, the 1979 High Court decision in Coe v Commonwealth is authoritative and not subject to question. She then argues that the ‘fundamental falsehood’ of Indigenous sovereignty drives a series of deeply flawed separatist demands that are both undesirable (she uses the term ‘unhelpful daydreaming’) and politically infeasible (‘taxpayers will surely baulk at having to fund this divided Australia’). This leads to the inexorable conclusion:

The ultimate tragedy of this report is that none of this political extremism is conducive to social cohesion.

The arguments advanced by both Ergas and Albrechtson are, in my view, intellectually flawed and compromised by their own ideological preconceptions. Ergas sets up a strawman built on principles derived from classical historiography to bolster his argument that the Commission’s processes could not amount to ‘truth-telling’ and thus should not be seen as credible. Yet the perspectives of those affected by government policies, whether those documented and considered by the recent royal commission into disability, or the royal commission into the robodebt fiasco, have not been criticised for their illegitimacy. Clearly the perspectives of citizens (whether right or wrong, refutable or irrefutable) matter in a democracy and it seems to me that governments have the right to establish a royal commission which inter alia seeks to ascertain and interrogate those perspectives.

Nevertheless, there is a distinction between the views and perspectives of citizens on policy matters generally and the need for objective criteria and rigorous analysis in determining effective policy. For example, The Australian has been an active participant in the debate on the nation’s ‘cost of living’ crisis driven in large measure by citizens with young families facing ever increasing house prices and high mortgage repayments. However determining appropriate policy responses requires consideration of broader macroeconomic factors, medium and longer term implications, impacts on other segments of the community, and indeed a broader comparative assessment of what is meant by ‘crisis’ in one of the top twenty wealthiest economies on the planet (link here), none of which detract form the legitimacy of the views of families under financial pressure. In other words, contra Ergas, I would argue that the Yoorrook Commission’s high-level narrative should not be dismissed as without value or as intellectually compromised; it is akin to an expression of widely shared concern. It serves some purposes very well, but not necessarily all purposes. For example, the concept of Indigenous ‘truth telling’ is clearly also a rhetorically or ideologically loaded term aimed at building or sustaining group solidarity and a sense of shared interests. Importantly it gives Indigenous citizens a sense that their voice extends beyond their own domain into the wider community and that voice is seen both symbolically and substantively as legitimate. Like advocacy from any interest group, it is not however necessarily a detailed roadmap for optimal policy reform in the public interest.

Albrechtson’s focus on the Australian legal system’s forthright refusal to recognise the existence of Indigenous sovereignty within Australian law is tendentious insofar as it ignores the possibility that forms of Indigenous sovereignty continue to exist within the Indigenous domain albeit without legal recognition at law. A parallel might be the example of native title: our legal system held that it didn’t exist (eg In the Milirrpum Case) until the High Court changed course and determined in Mabo No.2 that it could be recognised under various conditions. Once determined, native title over a tract of country is legally acknowledged to have always existed.

Moreover, while the focus on legal determinations is convenient, there are real world indications that Australian Governments have at times voluntarily diminished or compromised Australian sovereignty to achieve wider policy aims. The increasing encroachment of international trade agreements and trading rules is one case in point; the headlong expansion of the US presence in Australia (including arrangements that ostensibly enable the Australian Government to not be advised when the US brings nuclear weapons into Australia) are cases in point. In our 2019 Policy Insights paper Overcoming Indigenous Exclusion (link here), Neil Westbury and I provided an extended discussion on these issues, along with an analysis of the concept of shared sovereignty, a term used in The Uluru Statement from the Heart.

In other words, the High Court’s categorical legal assertion of absolute sovereignty is not necessarily inconsistent with the existence of coexisting forms of sovereign powers within the Indigenous domain, albeit only recognised by those Indigenous citizens who choose to do so. Nor is it inconsistent with the potential for the Australian Parliament to effectively delegate elements of the Crown’s sovereign powers. The possibility of future legal recognition of the exercise of such authority is both possible (but clearly not certain) and a matter which is legitimately able to be advocated for by Indigenous citizens.

The Yoorrook Commission was in my view entitled to reflect the views of those Indigenous citizens who aspire to see such reforms, and to recommend reforms consistent with those views. In this account, the oft-cited statement that Indigenous lands were never ceded can be interpreted both as a claim to the continued existence of an Indigenous sovereign status, and simultaneously as an argument for formal recognition of such status (on terms yet to be negotiated).

Albrechtson is on stronger ground in my view in relation to her concerns regarding what she terms ‘separatist demands’. It is not that I agree with her febrile rhetoric on the issue of separatism, rather it strikes me that the Yoorrook Commission has failed to contextualise and adequately account for the reality of the daily existence of Victoria’s Indigenous people.

Indigenous Victorians invariably lead modern lives, live in modern housing, drive cars or use public transport, use roads, and access government provided services such as garbage disposal, sports facilities, communications networks. They routinely engage in commercial behaviour either as consumers in private markets or as entrepreneurs. I could go on at length. As Noel Pearson has observed we all have layered identities, and Indigenous citizens are no different. While Indigenous citizens are inextricably entwined and interconnected with mainstream Australia, their Indigenous identity is crucially important. It would be misguided and morally unjustified for the nation to seek to erase that element of their identity, just as it would be inappropriate for the nation to seek to erase elements of non-Indigenous citizens’ identity. While Indigenous citizens are not separate, neither are they assimilated or uniformly mainstream. Unfortunately, the Yoorrook Commmission in my view gives inadequate attention to this reality, thus skewing the emphasis of its recommendations towards emphasising separateness over interconnectedness.

Of course, these issues are devilishly complex. Since colonisation occurred, Indigenous citizens have experienced violence, coercion, social and economic and cultural exclusion. These experiences have led to (or accompanied) loss of languages, poor health, discrimination and more. These consequences are in many respects ongoing and inter-generational and raise serious issues regarding how Governments (with their much-vaunted sovereign powers) should respond, how any such response should be framed, and what policies might be adopted to address those consequences. These are the issues that are encompassed by the term systemic injustice, the core element in the terms of reference of the Yoorrook Commission.

Where I part ways with Albrechtson in relation to separatist policy approaches is that it seems both morally unjustified and practically unwise to seek to prevent or avoid any open discussion with Indigenous interests about systemic injustice and its consequences. Her argument frames Indigenous concerns as politically extremist and then argues that such extremism undermines social cohesion. In turn, this justifies silencing this type of public policy advocacy. My view is that ongoing exclusion (structural and tangible) leads unsurprisingly to frustration and ultimately to more extreme views, and the politically astute remedy is to engage and include Indigenous interests in an open and transparent way regarding the way forward.

In essence, I am arguing for dialogue and mutual deliberation rather than unilateral silencing and suppression of legitimate perspectives which are the source of ongoing and widespread pain, trauma and social dysfunction. I am not arguing that Indigenous citizens deserve a blank cheque nor for a process that raises expectations that will never be met. Arguably the current approaches of Labor Governments in establishing what are effectively one-sided pre-treaty processes such as the Yoorrook Justice Commission (or the Morrison Government in establishing a Senior Advisory Group on the Voice Referendum) raise the expectations of Indigenous interests beyond what our political system is currently prepared to deliver. To the extent that this is the case, it is my view that the approach is misguided.

In relation to systemic injustice affecting Indigenous citizens, and given the reality of layered identities, the question of whether governments should focus specific policies and programs on those who identify as Indigenous or instead focus on wider need encompassing both mainstream and Indigenous constituencies comes to the fore. This will not always be a clean binary choice; often it will be clear which side of the line the answer falls, but in many cases, there will be legitimate arguments that the public interest will best be served with a dual approach. In many cases, the appropriate answer may be unclear.

My own perspective on how the nation should build on the work of the Yoorrook Commission and address these issues of systemic injustice can be summarised in seven propositions:

First, whether policies relevant to Indigenous citizens should be focussed on past events or present consequences is a legitimate subject for policy dialogue, debate and consideration. Given the reality of finite fiscal capacity within governments, there will always be trade-offs involved.

Second, whether particular policies should be designed as mainstream or Indigenous specific is a legitimate subject for policy dialogue, debate and consideration.

Third, the design of policies to address systemic injustice impacting Indigenous citizens should involve both mainstream interests and Indigenous interests and should focus primarily on the public interest broadly defined. To be clear, I am suggesting (perhaps controversially) that responsibility for resolving these issues and designing reforms should be shared between mainstream and Indigenous Australians, and therefore must be resolved by negotiation, not fiat.

Fourth, the usual processes of policy development for these high-level Indigenous policy frameworks have not worked and should be reconfigured to ensure a level of deep transparency. In my view, the existing practices of governments operating behind closed doors, and engaging with selected interlocutors in private will not find the compromises necessary to ensure durable solutions. We should not expect Indigenous interests to spend years developing policy proposals (four years in the case of Yoorrook) only for Governments to exercise a unilateral veto on whether to implement what has been proposed.

Fifth, governments, mainstream interests, and Indigenous interests should accept that the likelihood of a once only grand bargain (treaty) that solves all the issues encompassed by the existence of systemic injustice is a chimera. What will be required is a general commitment to a process that incorporates and engages with both the wider mainstream community and Indigenous communities as well as the interests that are most directly affected on both sides. This will take time but once initiated will engender trust and reduce the likelihood of backsliding by future governments. It also will allow for the iterative accretion of policy successes in relation to the more straightforward issues thus building the capability and experience necessary on all sides for addressing the hardest issues.

Sixth, the Commonwealth must be engaged in any such process, even where state-based processes are identified and set in motion. Our federal structure is too entwined for one level of government to resolve these issues on its own. Moreover, the Commonwealth has a responsibility, arising from the powers granted to it by the 1967 referendum. This suggests too that the Commonwealth lead agency should be a central agency (other than NIAA) able to take a holistic perspective of Commonwealth interests.

Seventh, it strikes me that the Coalition of Peaks and the framework established by the National Agreement on Closing the Gap should comprise the starting point for engaging with Indigenous interests in establishing such an ongoing process, although there might be grounds for expanding and modifying that framework to ensure greater inclusiveness. There is no reason why Indigenous interests could not reform their internal processes to enhance their negotiation capability themselves without government action.

Conclusion

I am sceptical that the Victorian Government has the capacity to engage substantively with the Yoorrook Justice Commission’s 148 recommendations, nor with the evident pain and concern that pervades the Victorian Aboriginal community. Without Commonwealth leadership and impetus, the most likely result will be the creation of further process, further delay and ultimately stagnation leading to irrelevance.

The process to date has clearly been worthwhile for Victorian Aboriginal interests, but to take the Commission’s work to a new level, there will be a need for Aboriginal interests to synthesise and prioritise the policy reforms that will have most impact and consider carefully their strategies going forward.

The lesson I draw from The Australian is that their aggressively critical perspective is a forerunner of what is to come and lays down a roadmap that more conservative interests will use to seek to suppress and prevent the greater social, economic and cultural inclusion of Indigenous interests.

The lesson from the Voice referendum for both mainstream and Indigenous interests is that strategic considerations, preparedness to compromise, and a unified and professional advocacy capability will be crucial in grasping the opportunities that flow from the work of the Yoorrook Justice Commission.

Finally, the stark choices facing both the Victorian Government and Indigenous interests in taking the Yoorrook Commission report forward are either win/win or lose/lose. There is no halfway house. Whichever outcome is chosen will have long term national implications, and shape not just Victoria, but the nation as a whole for generations to come.

 

11 July 2025

Addendum:

A reader brought to my attention the Victorian Government's response to the Yoorrook Commission's  second report (link here) which provides a template for the likely response to this third report.