MEDIA RELEASE 25 January 2021
Victorian Aboriginal Legal Service (VALS)

Exercising the right to protest on Invasion Day is a reasonable action in response to the systemic racism and injustices Aboriginal people have been subjected to every day since this land’s violent colonisation. Victoria Police must not misuse COVID-19 health measures to impede the right to protest. Health experts have stated that the risk of community transmission of COVID-19 is currently low, but that people attending a protest should take precautions.  

Since the Royal Commission into Aboriginal Deaths in Custody 30 years ago, the number of Aboriginal and/or Torres Strait Islander people in youth detention and prison has continued to increase and there have been over 400 deaths in custody. Just last week, Australia appeared before the UN Universal Periodic Review, where 31 countries declared that Australia was out of step with the rest of the world, and recommended that Australia raise the minimum age of criminal responsibility. Our children are not only locked up at alarming rates, they are also removed at alarming rates from their families and communities.

VALS has repeatedly voiced its concerns that the punitive measures that have formed part of the Victorian Government’s response to the pandemic, such as fining people instead of adopting a public health response, have discriminated against Aboriginal people. As Victoria moves towards COVID-19 recovery, VALS continues to be concerned that Aboriginal people will be left behind, with the latest budget not giving Aboriginal Community Controlled Organisations enough funding to address pandemic-related and other systemic issues.

VALS can assist Aboriginal and/or Torres Strait Islander people if they are fined, arrested or subjected to police violence while exercising their rights on Invasion Day. We strongly encourage people attending any protests or rallies to have VALS’ number on their person.

Anyone who is fined or arrested should call the Victorian Aboriginal Legal Service on 1800 064 865.

Anyone attending a protest on Invasion Day should comply with the latest COVID-19 restrictions in Victoria. General restrictions are listed at www.coronavirus.vic.gov.au/how-we-live. There may be exemptions or extra precautions for protests, depending on discussions between event organisers and the Victorian Government. Anyone attending an Invasion Day event should be aware of the rules for that event and follow them.

We encourage all community members who are intending on participating in happy fortune casino Invasion Day protests to know their rights. Participants should:

  • Read the Human Rights Law Centre’s Your Advocacy Guide: Protestors’ rights available at: http://www.hrlc.org.au/charter-advocacy-guides.
  • Have the phone number of legal services in your phone before attending protests.
  • Get legal advice before a police interview.
  • Know you are allowed to film police in a public space as long as you do not interfere with the performance of their duties.
  • If stopped by police, politely ask for their details and their reason for stopping you.
  • Ask police for medical attention while in custody if required.
  • If under the age of 18, request a third party to support you during discussions with police.
  • Try to record the names of witnesses.

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

“It has been 30 years since the Royal Commission into Aboriginal Deaths in Custody made its recommendations and Aboriginal and Torres Strait Islander people are still dying in custody.”

“Aboriginal and Torres Strait Islander people have been disproportionately impacted by the policing responses to the COVID-19 pandemic. It needs to stop, and police must allow peaceful protests to proceed.”

“VALS encourages everyone participating in Invasion Day protests to be aware of the COVID-19 restrictions and your rights and seek legal assistance as soon as possible if you are arrested or fined.”

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.