Part II Planning an investigation How old is the issue? The passage of time poses a range of challenges for an investigator. Evidence is perishable. Historical cases can require a lot of resources to investigate properly. It can be more difficult to establish the facts with any degree of certainty. And an investigation may rekindle old animosities. However, there may be circumstances where it is necessary to investigate, if only to shed light on an issue that continues to cause deep concern to the community, or a segment of it. For example, “truth and reconciliation” inquiry processes in countries such as South Africa have proven quite successful in addressing past injustices. In 1997, the Australian Human Rights Commission launched the report of its historic two-year inquiry into the forcible removal of Aboriginal and Torres Strait Islander children from their families. The report documented practices that took place over nearly two centuries up until the approximately 1970. Indigenous Australians had long seen these policies and practices of removal as one of the most fundamental wrongs done to them and as the foundation of much of the disadvantage they suffered. The Commission’s inquiry would be a cornerstone of the national commitment made in 1991 to a ten-year programme of national reconciliation between Indigenous and other Australians. Its terms of reference included making recommendations on policy and law reform, compensation and processes to assist family reunions. The inquiry also examined contemporary government practices relating to the removal and care of Indigenous children.25 Is there a lot at stake?25 Is an investigation necessary to establish the facts that might remedy what appears, on the face of it, to be a serious injustice? Will there likely be serious consequences to someone, or a group of people, if an investigation is not conducted? How will the decision to investigate, or not investigate, reflect on the NHRI? If the NHRI does decide to investigate the matter, will it be accused of overstepping its mandate? Will it be accused of wasting limited resources? If it decides not to investigate, will it be accused of timidity or failing in its duties? Is the complaint malicious, frivolous or vexatious? In some cases, a complaint may clearly be trivial or frivolous. These complaints can often be dealt with quite easily. However, the complainant may argue that the matter is not trivial to them. The NHRI must be prepared to explain why it has determined that the complaint is trivial. Complaints that may be malicious can be more difficult to handle. Is there actual evidence to suggest that a complaint is malicious or being made in bad faith? If so, the NHRI must be prepared to articulate what that evidence is. It can often require the same amount of time and resources to prove that a complaint falls into this category as it takes to actually investigate the substance of the complaint. 25 The Commission’s report – Bringing them home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families – is available at www.humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-socialjustice/publications/bringing-them-home-stolen. Chapter 4: Identifying the issues and deciding whether to investigate | 31