9 July 2021

Yesterday, the Commonwealth Government rejected a raft of recommendations made by UN nations, including recommendations to raise the age of criminal responsibility.

With the Commonwealth Government’s leadership failure in regard to raising the age, it is time for Victoria to stop dragging its heels. The ACT has already committed to raising the age and governments have an obligation to enact this reform without wasting another minute.

The Andrews Government has repeatedly claimed that raising the age should be a national issue, but given the failure of the Commonwealth Government to make any progress, Victoria must go it alone. On reforms to the gig economy, Treasurer Tim Pallas said that Victoria would progress with reforms to protect workers because the Commonwealth was failing to do so. Victoria’s children should be worth the same level of commitment.

Other recommendations that the Commonwealth Government failed to accept included enshrining the United Nations Declaration on the Rights of Indigenous Peoples into domestic law.

The Andrews Government has committed to strengthening anti-vilification laws after recommendations from a Parliamentary Committee Inquiry were tabled earlier this year. The Andrews Government is also progressing Treaty negotiations and the Yoo-rrook Justice Commission truth telling process.

While the Andrews Government has shown leadership in these areas, processes like Treaty and Yoo-rrook will not be successful if more immediate concerns are not addressed. That is why it is vital to raise the age of criminal responsibility to at least 14, ensure culturally safe OPCAT implementation and properly fund Aboriginal legal services.

The Andrews Government has the potential to leave an enduring legacy of progressive reforms that will impact generations to come, but its narrow focus and tough on crime obsession risks what work has already been done. Many commitments, including those made in the new Closing the Gap Agreement, Victoria’s Aboriginal Justice Agreement, and election promises made in the Victorian Labor Party Platform will not be delivered if the Andrews Government shirks its responsibility like the Commonwealth Government has.

Quotes Attributable to Andreea Lachsz, Head of Policy, Communications and Strategy, Victorian Aboriginal Legal Service 

“It is tremendously disappointing that the Commonwealth Government rejected crucial recommendations made by UN nations that would have improved the lives of Aboriginal and Torres Strait Islander people, and all Australians.”

“At VALS, we see the results of children being locked up every day. It certainly does not help children and it does not make the community safer. It creates generational trauma and a cycle of incarceration, poor health, attainment of lower education levels and difficulties in finding employment.”

“The Andrews Government must raise the age of criminal responsibility immediately if it wants to achieve the Closing the Gap targets it agreed to last year.”

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.