MEDIA RELEASE 03 March 2021

Charmaine Clarke and VALS welcome Anti-Vilification Protections Inquiry recommendations

Charmaine Clarke and VALS welcomes the final report of the Anti-Vilification Protections Inquiry tabled today by the Legal and Social Issues Committee. The committee has listened to the experiences of people like Charmaine and accepted their advice.

VALS thanks Charmaine for her advocacy and perseverance in pursuit of stronger anti-vilification laws. The experience of vilification takes a toll on the individuals who are subjected to it and seeking justice can compound those difficulties. The Committee’s report acknowledges Charmaine’s fight and it is an important step towards a fairer Victoria.

Charmaine was subjected to vilification in 2019 while having lunch at a bistro. A young man nearby was loudly making racist remarks about Aboriginal people. When Charmaine approached the man to ask him to stop, he and the group of people he was with continued to speak and behave in a racist manner.

When Charmaine tried to pursue the incident with the police under racial vilification laws, she faced challenges including the police not having the right experience or training and the high legal threshold.

Charmaine lodged a complaint with the Australian Human Rights Commission but was unable to pursue the matter as the respondent’s details were unknown to her and Victoria Police failed to keep a record of them when they investigated the matter.

VALS call upon the Victorian Government to implement the Committee’s recommendations in a timely fashion. We look forward to working with the Government to ensure Victoria has a strong and rigorous anti-vilification system for everyone, including Aboriginal and Torres Strait Islander people.

VALS particularly highlight that the following recommendations:

  • Strengthening and extending the powers of the Victorian Equal Opportunity and Human Rights Commission.
  • Reducing the thresholds for what qualifies as serious vilification.
  • Funding organisations such as VALS and Victorian Legal Aid to establish a practice in vilification matters.
  • Improving police procedures and training.

VALS has worked with Victorian Legal Aid to support Charmaine in pursuit of justice. Today marks a crucial step towards achieving justice for Aboriginal and Torres Strait Islander people. VALS is thankful to VLA for their support and is committed to continuing to support Charmaine in this important fight.

Quotes Attributable to Charmaine Clarke, Gunditjmara Family Violence Researcher

“Many Indigenous people experience racism and vilification throughout their lives and efforts to seek both protection and remedy to racial vilification was difficult to prove under the former legislation.”

“This led to many cases including my own case failing before the starting post. The threshold was too high and it unfairly burdens the victim. I was left feeling vulnerable and betrayed by the system.”

“So I welcome the potential changes to the laws, giving greater access to legal recourse and broadening the scope of protection from harmful racist behaviour for Indigenous Victorians.”

Quotes Attributable to Nerita Waight, CEO of Victorian Aboriginal Legal Service

“I send huge congratulations to Charmaine Clarke. Charmaine has made a tremendous effort to turn her experience into positive change. She embodies the strength and resilience of Aboriginal people in the face of ongoing colonial racism and oppression.”

“I also congratulate the Committee on its report and the recommendations.”

“I am confident that the Victorian Government will engage with stakeholders swiftly in order to progress the implementation of the Committee’s recommendations.”

“The system failed Charmaine. The laws failed Charmaine. The police failed Charmaine. Aboriginal people are continuing to be subjected to vilification without access to justice. The proposed changes provide hope that we can end some of that.”

Media inquiries

Patrick Cook
Senior Communications and Media Officer
pcook@vals.org.au
0417 003 910

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.