VALS calls for a human rights compliant, health driven government response to confirmed covid-19 case in Melbourne prison

VALS understands that a recently detained person in a Melbourne prison has been diagnosed as COVID-19 positive. We have been advised that the person is being provided with medical care and is currently in protective quarantine.

The urgent need for a decarceration strategy

The Black Lives Matter movement has brought national and international attention to the long-standing injustice that is the mass imprisonment of Aboriginal and Torres Strait Islander people. The gross overrepresentation of Aboriginal people in the criminal legal system means that Aboriginal people will be disproportionately impacted should there be an outbreak of COVID-19 in Victoria’s prisons.

The Victorian Government must take immediate steps to mitigate the risk of COVID-19 to people in detention, including by implementing effective decarceration strategies. Social distancing in prisons and youth detention facilities is impossible, and an outbreak of COVID-19 will impact not only those who are detained, but the broader community. Decarceration is an essential component of a comprehensive and responsible public health strategy.

VALS emphasises that Aboriginal people in custody are particularly vulnerable to COVID-19, with many people having underlying medical conditions, and that they should be among those who are prioritised for release from detention. There are currently existing mechanisms in place that can be immediately activated for the early or temporary release of Aboriginal people, including bail and parole.

VALS encourages the Government to also urgently consider passing legislation that would allow for the release of people detained in prisons and youth detention, such as the legislation that has already been passed in NSW and the ACT. Raising the age of criminal responsibility to 14 is another means by which the Government can keep some of the most vulnerable people in our community safe – our children.

VALS strongly urges police to exercise their powers responsibly, in order to curb further admissions to places of detention, including police vehicles, police cells, prisons and youth detention facilities. This can be achieved by police issuing summons, releasing people on bail, and having a moratorium on pursuing prosecution for low-level offences and breaches of bail and parole conditions.

Equivalency of medical care and humane treatment of people in detention

VALS strongly supports the UN Chair of the Committee against Torture’s recent comment that people who are deprived of their liberty “should enjoy the same standards of healthcare that are available in the community

at large, including access to virus testing and medical treatment.” The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) should be at the forefront of the Victorian Government’s mind, as we mark Nelson Mandela International Day tomorrow. The rules make clear that “prisoners should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status.” The obligation to provide equivalency of medical care to people deprived of their liberty is echoed in the International Covenant on Economic, Social and Cultural Rights, which emphasises “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

Measures taken and practices adopted in places of detention in an attempt to contain COVID-19 must never amount to torture or cruel, inhuman or degrading treatment and should not form part of the Government’s strategy to keep detained people and detention centre staff safe and healthy.

Quotes attributable to Nerita Waight, CEO of Victorian Aboriginal Legal Service:

“For months, international experts have urged governments to take preventive measures and release people who are detained. We have heard a consistent message from them all; the World Health Organization, the UN, the UN High Commissioner for Human Rights, the UN Office on Drugs and Crime, the Joint UN Programme on HIV/AIDS, and the UN Committee on the Rights of Persons with Disabilities.

Getting control of an outbreak of COVID-19 in detention will be much more difficult than preventing an outbreak in the first place. The Victorian Government has an opportunity that it cannot afford to squander. The cost is simply too high – for people in detention, and for all of the Victorian community. The health of the people in custody is inextricably linked to the health of all Victorians during this pandemic. We have seen the devastation that comes with the spread of COVID-19 in detention in countries such as the USA.

Black Lives Matter is not a slogan. It is a movement which calls on everyone to value and protect the lives of Black people, of Aboriginal and Torres Strait Islander people. Now is a time for the Government to demonstrate a genuine commitment to ending the ill-treatment and deaths of Aboriginal people in custody. This means curbing admissions to detention, and responsibly releasing people from custody and giving them the necessary supports to be safe and healthy in the community. It means equivalency of medical care for people who remain in detention, and ensuring that no measures taken to contain COVID-19 in detention amount to torture, or cruel, inhuman or degrading treatment.”

End

Contact: Andreea Lachsz
alachsz@vals.org.au

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.