The Yoorrook Justice Commission Report: Has Truth-Telling Met Its Mark?

Posted on 10/04/2025 by Associate Professor Becky Batagol

By Imogen Stephenson

This post is part of a series of the best blog posts written by undergraduate law students enrolled in 2024 in Non-Adversarial Justice at Monash Law.

The establishment of the Yoorrook Justice Commission in 2021 as Australia’s first formal truth-telling process into historical and ongoing injustices experienced by First Nations people marked a significant milestone in the nation’s journey towards reconciliation. Before it publishes its final report later in 2025, it is time to reflect on the Commission’s contributions and whether it has fulfilled its ambitious mandate.

Chaired by Professor Aunty Eleanor Bourke, a Wergaia/Wamba Wamba Elder, the Yoorrook Justice Commission was established in May 2021 with a mandate to investigate systemic injustice through First Nations people’s stories, experiences and concerns. A key goal in the mandate was to determine the causes and consequences of systemic injustice (including the role of State policies and laws), and to determine which entities bear responsibility for the harm suffered by First Nations people. In practice, the Commission had a critical focus on child protection and criminal justice systems, both of which are long-standing sources of trauma for First Nations communities as a direct result of colonisation. Now, with the hearing process complete, the Commission’s success can be qualified by its reception by the public, and most importantly, First Nations leaders and communities.

Significance of the Commission’s success

The deep-rooted trauma experienced by First Nations people is a backdrop to legal disputes in many jurisdictions, with a particularly pronounced effect in Australia. In addressing this issue, the Yoorrook Justice Commission has garnered attention for its use of trauma-informed platforms to listen to people’s stories in a receptive and understanding way.

Importantly, the success of this approach is not limited to First Nations matters. On a general scale, the Commission is a good demonstration of how processes aimed at bringing people together can help to address complex issues, including those involving significant trauma.

Emotionally informed approach to truth-telling

An overarching success regarding the Commission’s hearing process was the use of a social and emotional wellbeing support model, to avoid re-traumatisation of vulnerable communities. This emotional sensitivity encouraged engagement by First Nations people, ensuring their voices were heard across each Traditional Owner country in Victoria. By engaging with this broad range of communities, the Commission ensured its work was widespread and inclusive.

A significant outcome of this emotionally-driven hearing process was (then) Victoria Police Chief Commissioner Shane Patton’s apology in his witness testimony, acknowledging that police uniform was a ‘symbol of fear’ for First Nations people. He renewed a commitment to eliminating bias and racism against First Nations people within police ranks, and bluntly admitted to having no First Nations-led services in the department. This public admission brought the existence of inequalities to the forefront of public consciousness, where they may otherwise have been viewed as ‘consigned to the past’. From this perspective, the Commission’s public engagement with responsible institutions has launched critical steps towards the genuine reconciliation aspired to by the mandate.

A middle aged many on a black or dark navy police uniform sits at a desk. There is a microphone in front of him and some leaves on the table visible in front of him. The chair behind his has some kind of animal skin on it. He is clearly high ranking as there are metal insignia on his shoulders. his badge reads Shane Patton Chief Commissioner. His hands are folded and he is looking to his right.

Image: Yoorrook Justice Commission, Shane Patton speaking at Yoorrook Justice Commission, Accessed on 26 March 2025, used under CC BY 3.0

Focus on child protection and criminal justice systems

The Commission’s most prominent area of inquiry has been into child protection and criminal justice systems, through the Yoorrook for Justice Report. This report exposed how Western conceptions of family continue to perpetuate racist systems of child removal – echoing the trauma associated with the ‘stolen generation’. In the report, the Commission called for significant changes such as transferring decision-making power, control, and resources to First Nations people in these systems. The report also recommended abolishing detention for children under 16 and urged Victoria Police to consider the unique backgrounds and systemic factors affecting First Nations people when making decisions. By identifying and addressing how interactions with the police significantly contribute to perceived systemic injustice, these recommendations directly respond to the mandate. However, despite the promising narrative propagated by the Commission, these recommendations have been met with substantial controversy – both by the public and by the government in response.

Criticism of the Commission

Overall, the Commission has indeed been met with support from the public. As stated by Uncle Bobby Nicholls, a Yorta Yorta, Dja Dja Wurrung and Wadjabalok man and previous Director of the Victorian Aboriginal Child Care Agency, ‘With Yoorrook, that gives me faith that we will get answers’.

However, criticism of the Commission’s work has appeared from both First Nations people and other Australian voices. Chris Meritt from the Rule of Law Institute of Australia criticised how the Yoorrook recommendations to introduce a First Nations-led system ‘would entrench racial division’, and how a ‘narrative of victimhood was set in train from the very beginning’ through the mandate itself.

While this opinion is rooted in the European-Australian ‘rule of law’, its criticism of ‘victimhood’ is shared by several First Nations perspectives. For instance, Nyunggai Warren Mundine, a Yuin, Bunjalung and Gumbaynggirr man and Executive Chairman of Nyungga Black Group Pty Ltd, has condemned the recommendation that the state’s police commissioner should understand the ‘role of Victoria Police in the dispossession, murder, and assimilation of First Peoples,’ by accusing the Commission of adopting a ‘grievance and victim approach.’ Mundine argues that such recommendations do not contribute to constructive solutions, and should instead consider the actions by First Nations people that cause them to be incarcerated: ‘What we look at in this area is the wrong target. People look at incarceration rates. We should be looking at lowering crime. The majority of those in prison are there for serious violent crimes.’ Similarly, Dr Anthony Dillon, who identifies as an Aboriginal Australian man and is a researcher, commentator and practicing psychologist at Australian Catholic University, has described some of the recommendations as ‘way over the top,’ suggesting that allegations of racism can sometimes distract from the harm First Nations people inflict on each other. These perspectives suggest that the root cause of First Nations people’s aggravated experiences in Australian legal system may go beyond what is acknowledged by the Commission.

From yet another First Nations perspective, some agree with the Commission’s routes of inquiry, yet question the constrictive framework for such an ambitious mandate. Marcus Stewart, Nira illim bulluk man of the Taungurung Nation and the inaugural Co-Chair of the First Peoples’ Assembly of Victoria, encompassed this in the hard-hitting question: ‘How in a three-year period do you unpack 200-plus years of the impacts of colonialisation?’ This rushed investigation period may have further limited the depth of inquiry available to the Commission.

Despite these concerns about the institutional motivations and implementation of the Commission, Yoorrook continues to demonstrate a promising sense of integrity as an independent body. The Commission has already obtained a year extension for its inquiries, and requested law-making to facilitate its operation, such as preserving confidentiality of truth-telling for at least 99 years.

However, while the Commission represents a first step to cultural change, true success will only be achieved if the government is willing to rectify systemic issues – something that appears to be in question.

Disappointment with government response

Although the Commission’s activities in isolation have been generally well-received, the public has expressed disappointment surrounding the dissonance between the Commission’s objectives and government action. The Allan Government has responded to Yoorrook’s 2023 Report with full support of less than 10% of the recommendations, and ‘in principle’ support of only half. The government fully rejected three recommendations, including modifications to bail laws and raising the minimum age of criminal responsibility.

This unwillingness to support Commission-led changes has been met with backlash. The Victorian Aboriginal Legal Service stated the response was ‘unworthy of the heart wrenching truths that were told at the Yoorrook Justice Commission’. According to Nerita Waight, Yorta Yorta and Narrandjeri woman with Taungurung connections and CEO of the Victorian Aboriginal Legal Service, ‘Promises have been delayed or shelved, and there’s no clear direction coming from the Government.’

The government’s reluctance to implement change poses a significant hurdle for the continuation, and ultimate success, of the Commission’s objectives – as well as First Nations confidence in the state government.

Far from a failure

The above criticisms and reluctance to follow Commission recommendations clearly mark a dissonance between the aspirational approach of the Commission and the actual bandwidth for change within the existing system.

However, even in these circumstances, it is important to recognise the Commission’s pioneering success in initiating dialogue about truth and reconciliation in Victoria. Its underlying motivation is to distil issues as perceived by First Nations people, acting as a mouthpiece for First Nations interests. If the resulting message speaks of trauma, rage and victimisation, even if not immediately actionable within the current framework, the Commission can nonetheless be seen as fulfilling its purpose by relaying it to the government.

The Commission holds the confidence of many First Nations peoples. There is strong hope for the future of including First Nations perspectives in policy-making.

All Victorians have been invited to join Kerrupmara Gunditjmara, Yoorrook Justice Commission Deputy Chair, Travis Lovett in the Walk for Truth to walk 370 kilometres from Gunditjmara Country in Portland to the Victorian Parliament on Wurundjeri Woi-Wurrung Country in May and June 2025. The walk will bring together people from all walks of life to build shared understanding. It will create a space for people to have meaningful conversations, share stories, experiences and knowledge, and learn and explore more about the importance of truth telling in the State of Victoria. You can register here.

About the Author

Imogen Stephenson is a final-year student at Monash University, studying a double degree in Law (Hons) and Physics (Hons). She currently works as a paralegal in Intellectual Property at Corrs Chambers Westgarth and performs clinical data analysis at Cyban. She has developed a keen interest in non-adversarial justice and therapeutic dispute resolution through her studies with Associate Professor Becky Batagol at Monash.

Wishin’ and Hopin’: ADR Policy in Victoria

Posted on 16/12/2014 by Associate Professor Becky Batagol

The past couple of years have seen dispute resolution increasingly politicised in Australia, as we have explained elsewhere. The Victorian election, held on 29 November this year and which resulted in a change of government, is no exception.

The new Australian Labor Party (ALP) government has made an explicit commitment to increasing use of ADR in Victoria. The government’s pre-election platform states (at p 67-8):

Where disputes occur, Government should provide Victorians with options to resolve them at the earliest stage to avoid the cost, stress and delay that is often a feature of traditional court proceedings.

Specific policies promised in relation to ADR include increased promotion of mediation and ramping up the dispute resolution options at VCAT, the Victorian Civil and Administrative Tribunal, so that it is restored as “a simple, low cost jurisdiction that assists parties seeking speedy resolution of their matters in a less formal and intimidating environment.”

The government has also committed in its platform to providing increased access to justice for vulnerable Victorians (p.67). It has promised an inquiry into access to justice in Victoria including into availability and funding of Community Legal Centres (CLCs). Specific measures pledged to improve access to justice include increased funding for Victoria Legal Aid, addressing “the clogging of the court system”, fixing the problems with funding cuts at VCAT and encouraging more lawyers to work at Community Legal Centres through providing incentives such as scholarships and HECS rebates.

Related promises in the ALP platform include mainstreaming into the broader court system some of the successes of the problem-oriented courts set up in Victoria over the past decade (p.64) so that offenders are better connected to the services they need to address their offending.

While the previous government was in power Victoria from 2010-14, ADR policy moved slowly at best. The Attorney-General for that government, Robert Clark, had publicly expressed his commitment to ADR, stating to the LEADR Kongress in September last year: “The State government is a strong supporter of ADR and the role it can play in bringing about just outcomes in a timely and cost-effective manner.” However the record of the coalition government supporting ADR did not match these words when, in 2011, it repealed legislation containing broad-scale pre-action procedures mandating participation in ADR for all civil disputes before the courts. In passing these reforms, the Attorney-General stated in Hansard on 10 Feb 2011 (at p 307):

It is common sense and good practice for parties to attempt to resolve their dispute without resorting to litigation if there is a reasonable prospect of success in such an attempt. However, the government’s view, and the view of many practitioners, is that to seek to compel parties to do so through these heavy-handed provisions will simply add to the complexity, expense and delay of bringing legal proceedings, because of the need to comply with these mandatory requirements, whether or not they are likely to be useful in any particular case.

It is regrettable that the legislation was repealed without any evidence base of the effectiveness of the reforms or independent testing of the Attorney’s claims.

It remains to be seen whether the deeds of this new Victorian government match its words. The fact that ADR and access to justice were explicitly part of the policy platform prior to the election is promising. The new Attorney-General, Martin Pakula, has big shoes to fill, his Labor predecessor being Australia’s most reformist AG, Rob Hulls (Lionel Murphy having fewer years in the job).

While we wait to know more from the government in Victoria, here’s my personal wish-list for the Attorney-General to tackle in relation to dispute resolution/ ADR policy reform in Victoria

A public review of the quality and effectiveness of ADR processes in Victoria. ADR is offered in every Victorian court and by many other state providers. But we know little about the quality of services offered (including settlement rates, satisfaction, inter-professional collaboration around the process and the fairness of outcomes). The Productivity Commission recently called for all State and Territory governments to conduct an independent public review of the effectiveness and efficiency of dispute resolution mechanisms within their jurisdiction every 5 years, starting by 30 June 2016 (p.298). Such a review would be a good start for a government intent on making an impact where there is already significant state outlay on ADR services and efficient justice investment is an imperative.
Mandating public reporting on standard ADR data by all Victorian ADR service providers (including courts and tribunals, Community Legal Centres, Victoria Legal Aid and other dispute resolution services such as the Dispute Settlement Centre of Victoria, or DSCV). Higher quality and consistent data collection would enable us to understand whether existing ADR services meet their aims and whether gaps in service provision exist. Higher quality data means that money can be efficiently allocated where there is highest need. The public availability of such data is crucial to ensure transparency in provision of dispute resolution services when ADR lacks the many of the fairness protections available in the public court system. The absence of adequate dispute resolution data was noted by the Victorian Law Reform Commission (VLRC) in its 2008 report on Victoria’s civil justice system in relation to the effectiveness of court-ordered mediation in Victoria (at pp 278-83). In 2009, when the Victorian Parliament’s Law Reform Committee recommended that

At a minimum, the Committee believes that there is a need for consistent data collection across ADR service providers about:

-settlement rates

-factors that may influence settlement rates, such as referral stage

-what happens when disputes are not settled at ADR

-participant satisfaction with ADR and perceptions of fairness the time and costs expended by participants and service providers. (pp. 58–59)
Widespread use of family group conferences for child protection matters usually commenced in the Children’s Court of Victoria. In 2010, just prior to the State election in that year, the Victorian Law Reform Commission set out a range of options for reform of the processes followed in child protection cases in the Children’s Court of Victoria. One of the options canvassed involved a graduated range of supported, structured
and child-centred agreement-making processes as the principal means of determining child protection application outcomes instead of existing court processes. The Commission noted that most agreements in child protection matters are already the result of informal bargaining between the parties’ lawyers (at para 7.4) and that supported and child-centered processes such as family group conferences would better enable agreements that are in the best interests of the children involved and which stick in the longer term. These options for reform were never implemented following the 2010 election and may yet help to ensure that scarce resources already invested in Victoria’s child protection system are directed towards assisting vulnerable children have care arrangements that meet their best interests.
Better connecting and integrating state-funded family violence and police services with federally-funded Family Dispute Resolution (FDR) services so as to better protect those experiencing family violence. In 2010 the Australian and NSW Law Reform Commissions’ joint inquiry into family violence concluded that there was potential for FDR to expeditiously and effectively resolve parenting disputes in cases involving family violence but that there had to be better coordination with State and Territory child protection and family violence systems (at paras 21.12-21.13 and 21.50). The Luke Batty case has clearly demonstrated the need for more effective coordination of state-based family violence and police services and services within the federal family law system. The Victorian government has committed to holding a royal commission into family violence. By committing to work specifically with FDR providers including Family Relationship Centres and Victoria Legal Aid’s Roundtable Dispute Resolution, the Victorian government can help to provide avenues for seamless, safe and supported decision-making following family breakdown for women and children experiencing family violence.

So, that’s my list. What is on your personal wish-list for ADR policy reform in your State or locality?

Becky Batagol would like to disclose that she worked for the Victorian Law Reform Commission on its inquiry into Protection Applications in the Children’s Court of Victoria in 2010.