Conducting a National Inquiry into Systemic Patterns of Human Rights Violation Some national inquiries have used advisory or reference groups made up of those with ‘insider’ experience and expertise in the subject of the inquiry. The National Inquiry into the Separation of Aboriginal and Torres Strait Island Children from their Families formed an Indigenous Advisory Council constituted by indigenous members from all the major regions of Australia. The Council provided advice on the hearing process, supported the Inquiry in seeking evidence and submissions, contributed to the analysis of the material presented, considered the Inquiry’s draft report and provided detailed comments on proposed recommendations. In engaging victims, an inquiry needs to be especially sensitive to their vulnerability. For victims, the inquiry may be their first and only opportunity to tell their stories, to receive recognition as victims of human rights violation and to seek a remedy. They will need reassurance that they will be respected and their evidence treated seriously. The inquiry should also consider whether it needs to provide counselling or other support to victims. Some victims will have limited education and not be familiar with formal proceedings of inquiries. They will need assistance to participate, both through oral and written evidence and submissions. For many victims, giving evidence will be very distressing and may cause or add to their trauma. The inquiry cannot escape responsibility for the consequences of its proceedings. It must anticipate need and establish mechanisms to respond. Victims will be encouraged to become engaged with the inquiry if they are assured that they will be treated well and supported in their participation. The first and most important operating principle of an NHRI’s national inquiry is to do no harm. Government ministers and other leaders may resent the inquiry’s intrusion into their work. They are accountable primarily to the parliament and the electorate and so they may be reluctant to deal in person with a national inquiry. However, the inquiry should encourage them to engage directly with it in ways appropriate to the NHRI’s independent status. This is in the interests of the political leadership itself but also assists the inquiry to understand fully the basis for government policy and action. It also promotes implementation of inquiry recommendations after the inquiry is completed. Ministers who have felt part of the inquiry process will be more inclined to take the inquiry’s recommendations seriously. Civil servants will need other encouragement. They work to the Government’s ministers and may have difficulty in assisting the work of an independent national inquiry. The inquiry may need to obtain ministerial directions for the engagement of civil servants. Civil servants may also need legal protection if they provide information to the inquiry. Most NHRIs have powers to compel the production of evidence and the appearance of witnesses and to provide protection to those who give evidence or produce documents. These powers should be used when necessary to enable the inquiry to proceed as effectively as possible. They may need to be used, for example, to secure the full cooperation of civil servants. Relevant powers of NHRIs • to compel the production of documents • to enter and inspect premises • to compel the attendance of a witness • to examine a witness under oath • to initiate prosecutions • to refer evidence to a prosecutor • to provide protection to witnesses to prevent harassment, intimidation or victimisation • to prevent the NHRI and its staff being obstructed in their duties. Legal powers may also be needed to secure the engagement of alleged perpetrators. They may fear criminal prosecution on the basis of the evidence they give. Those less responsible may be reluctant to give evidence against their superiors, for fear of retribution. Use of the inquiry’s powers can compel evidence and protect witnesses. 26