Victorian government could face criminal charges after failing to meet truth-telling deadline

The Andrews government could face criminal charges for failing to meet its commitment to a truth-telling commission.

The Andrews government has faced sharp criticism from the state’s truth-telling commission for failing to meet its commitment to provide evidence about Victoria’s criminal and child protection systems.

Before a directions hearing of the Yoorrook Justice Commission on Monday, counsel assisting Sarala Fitzgerald said the commission had received “very little” from the government to date.

She said a set of 178 questions had been requested in February, alongside witness statements from key bureaucrats, but the material had not been provided by the February 27 deadline.

“We asked for these two things so that we could have the state’s response on key issues impacting Aboriginal Victorians in the justice and child protection systems and obtain documents to get to the bottom of what the state knew and knows about key issues, about why things were done,” she said.

“We have, to date, received very little from those notices.”

Counsel acting for the state of Victoria, Georgina Coghlan KC, addresses Yoorrook Justice Commission chair Eleanor Bourke AM. Picture: Brianna Young/Yoorrook Justice Commission.

Ms Fitzgerald said a document provided by the Department of Justice and Community Safety also did not provide “direct answers” to 71 questions.

She said the delays caused by the government placed future hearings in jeopardy alongside the mandated release of the commission’s interim and final reports.

The Victorian government had provided a commitment to engage with the commission and could face criminal charges for failing to meet the deadlines, Ms Fitzgerald noted.

The Yoorrook Justice Commission is the first truth-telling body in Australia, set up to share and record stories about the historical and ongoing injustices experienced by Indigenous Victorians.

It has also been asked to provide “bold and transformative” recommendations to the government on urgent reform.

The commission was expected to begin its fifth block of hearings on March 21, with government witnesses expected to give evidence about the child protection and criminal justice systems.

Counsel acting for the state of Victoria, Georgina Coghlan KC, said missing deadlines were not due to a “lack of genuine commitment” to the work.

“The state recognises the compliance dates for recent documents has passed and apologises to the commission for the delay,” she said.

“It is not because the state is trying to be unco-operative or not responsive … We simply note that what they demonstrate is the sheer amount of work that has been required.”

Then acting Victorian premier James Merlino announced the appointment of commissioners for the Truth and Justice Royal Commission in May 2021. Picture: NCA NewsWire / David Crosling

Ms Coghlan said the Victorian government had committed resources to the response it felt was sufficient but proved not to be.

She said the complexity of the material requested, which ran to about 30,000 pages, and the levels of review and authorisation made the deadlines “impossible to achieve”.

She asked for an extension to the deadline, noting this would impact the hearing schedule and ability of the commission to produce its interim report.

“The state is finalising approval for an extension of time for the commission,” she said.

Commission chair Eleanor Bourke said the government’s response demonstrated a “fundamental misunderstanding of the truth-telling process”.

“It is more business as usual rather than engaging with First Peoples in the spirit of openness required for Victoria to truly reckon with the injustice perpetrated,” Professor Bourke said.

“To date the Yoorrook Justice Commission has accommodated many of the state’s requests for extensions … but the time for rolling extensions has now passed.

“Truth-telling does not mean just asking First Peoples to tell their stories. The state must also engage in truth-telling, this means not using the legal process to avoid the truth.”

Yoorrook Justice Commission commissioners Kevin Bell AM, Maggie Walter, chair Eleanor Bourke AM, Wayne Atkinson and Sue-Anne Hunter. Picture: Supplied.

Commissioner Sue-Anne Hunter said it was an understatement to say the commission was “extremely disappointed” by the development.

“We have worked hard to gain the trust of our people to tell their truth and so we can hold the state to account,” she said.

“We need to properly understand when and how the system failed and keeps failing First Peoples in this state. We expect more for our people.”

The commission ultimately decided to vary the notices to provide material, extending the deadline until April 6.

The hearing will resume on April 4 to consider the impact to the hearing schedule and identify whether the government had met its obligation.