Submission to the inquiry into the use of cannabis in Victoria


EXECUTIVE SUMMARY

The Victorian Aboriginal Legal Service (VALS) welcomes the opportunity to make a submission to the Legislative Council Legal and Social Issues Committee Inquiry into the use of Cannabis in Victoria (2020). VALS’ submission highlights the disproportionate impacts of criminalisation of cannabis use and possession of cannabis for personal use on our criminal legal service clients.

Addressing low-level drug offences through the criminal justice system comes at an enormous financial, social and health cost to the community and continues to fail in reducing the harm of cannabis disorders in affected community members. Changes to the Bail Act mean that someone charged with possession of cannabis (an indictable offence) is remanded unless they are able to demonstrate exceptional circumstances, despite the fact the finding of guilt in relation to the charge is unlikely to result in a term of imprisonment.

VALS is particularly concerned by the over-representation of Aboriginal and/or Torres Strait Islander people in the criminal justice system, where contact is a result of low-level cannabis offences. In particular, VALS notes the correlation between ongoing trauma resulting from colonisation, and substance use and deaths in custody, highlighting a system-wide failure to address the complex contributing factors of substance misuse in Aboriginal communities. Rehabilitation from drug disorders is an individual journey that commonly includes relapse as part of recovery. Addressing public health and safety concerns through the criminal justice system only contributes to the underlying causes and perpetuates disadvantage and further contact with the criminal justice system. 

VALS calls on the Victorian Government to decriminalise the use of cannabis and possession for personal use and take a community health-based approach to supporting the education, recovery and rehabilitation of affected individuals and communities.

As outlined in this submission, there are alternative approaches to addressing the misuse of cannabis through a culturally-responsive, community health approach that addresses health, mental health, and social impacts of cannabis use on people who use cannabis, their families and their carers.  

To determine eligibility VALS will:

  • enquire as to the Aboriginality of the client;
  • enquire as to perceived or actual conflict of interest;
  • enquire as to compliance with the Means Test;
  • consider the merit of the client’s matter.

Aboriginality
The first time someone uses VALS they must provide proof of their Aboriginality using the Confirmation of Aboriginality Form. This form must be signed and sealed by the Officer Bearers of a recognised Aboriginal and Torres Strait Islander organisation.

Conflict
VALS must not decline to provide assistance to an eligible person, group or body on the grounds that the other party to the matter is an Aboriginal and/or Torres Strait Islander person. In circumstances where the relationship between the parties to a case would result in a conflict of interest, that conflict must be managed in accordance with the Victorian Legal Practice requirements and Policy Direction 9 – “Managing Conflicts of Interest” – of the Attorney-General’s Department Policy Directions for the Delivery of Legal Aid Services to Indigenous Australians (2008).

VALS will not act if a conflict of interest exists. A conflict of interest may be an ‘actual’ conflict of interest or a ‘perceived’ conflict of interest. A conflict of interest can involve:

  • Clients who have different interests, such as VALS may have advised or acted for person “A” (old client) who has an interest that conflicts with person “B” (intended new client).
  • Clients and VALS, such as a VALS staff member or Board Member has an interest that conflicts with an intended new client. Conflicts involving client-provider relationships are:
    •  An owner, director, manager, employee, contractor or agent of VALS and/or;
    • An employee of the Department; and/or
    • A close relative (spouse, de facto, parent, sibling or child) of any of the above.

VALS provides assistance on a first in best dressed basis (i.e. provide direct assistance to the party who approaches VALS first). VALS will refer the other party to another legal service provider or “brief out” the client to a private lawyer (subject to the client meeting the requirements for brief outs). Where appropriate, VALS may act for one client and provide assistance by brief out to the other.

Means Test
Where a person seeks casework assistance, VALS must ensure that applicants satisfy the Means Testing provisions of the Policy Directions.

VALS must ensure that all applicants for legal casework assistance satisfy one or more of the following requirements:

  • Under 18 years of age;
  • Main source of income comes from Community Development Employment Projects; (CDEP) participant wages or Centrelink (or equivalent) benefits; or
  • Gross household income is under $52,000 per annum.

Note: Household income includes the income of your partner, spouse, relative including an adult child who you live with.

The Means Test will be administered in two parts:

Part A: Requires the completion of a small number of questions relating to the applicant’s personal circumstances and income level.

Part B: Is required where applicants do not satisfy the criteria in Part A. It requires more detail about the applicant’s income, assets, employment status and number of dependents.

Merit Test
Discretion will be used to determine if a particular case has merit.