MEDIA RELEASE 22 June 2021
Victorian Aboriginal Legal Service (VALS)

The Andrews Government’s Education and Training Reform Amendment (Protection of School Communities) Bill 2021 is currently before Parliament. This is a deeply troubling Bill and the Government has misstated our position on it 

We do not support the Government’s Bill.

We have particular concerns about how such legislation will be used against parents of children with disabilities and/or multiple complex needs and/or Aboriginal and Torres Strait Islander children. These children are not only vulnerable due to the complexity of their needs, but are also subject to systemic racism, exclusionary practices, and discrimination, and often have little support. Giving schools the power to exclude parents who advocate for their children’s needs will have a devastating effect on equitable access to education.

The need for such legislation has not been demonstated. For serious cases, schools can seek Personal Safety Intervention Orders, which are made by a court. This Bill introduces a parallel system where school officials, without legal training, in the absence of procedural fairness, could even order parents to participate in a program. The threshold for issuing an order is low and vague, absent critical safeguards, with limited opportunities for appeal. Despite these shortcomings, the proposed legislation could lead to significant fines for breaching such an order. Progressing with such a punitive approach is in direct conflict with supporting families and children.

Education is a key protective factor which reduces the chance that marginalised children, particularly Aboriginal children, will come into contact with the criminal legal system. The Commissioner for Children and Young People’s landmark report Our Youth, Our Way, published this month, found that “[l]eaving school early or experiencing chronic difficulties engaging in education while at school can push some children and young people towards the youth justice system.” Excluding parents from engaging with their children’s education risks the students themselves becoming disengaged from their schooling. This Bill would remove a key protective factor against contact with the criminal legal system, and undermine the Government’s commitment to reducing incarceration of Aboriginal people.

Juliana Addison MP incorrectly stated to the Victorian Parliament on Tuesday 8 June that VALS welcomed the Bill. Several other government MPs have implied that we support the Bill in Parliament or in their public comments. The Andrews Government media release New Laws To Make Schools Safer For Everyone on 4 May 2021 also implied that VALS endorsed the Bill. These statements by members of the Government are profoundly misleading. We were consulted on the proposed Bill. During those consultations we made clear many of our concerns about the impact of these changes on Aboriginal children and children with complex needs.

None of our concerns have been addressed in the Bill put forward by the Government. Parliament should vote down this Bill and the Government should demonstrate the need for such legislation, and commit to a transparent and honest consultation process before introducing any similar legislation in the future.

Quotes Attributable to George Selvanera, Acting CEO of Victorian Aboriginal Legal Service

“The need for such a Bill has not been demonstrated and, in fact, ignores the evidence that has shown time and again that keeping children in school is a protective factor, preventing contact with police and the criminal legal system. Ostracising parents, and adding barriers to them engaging with their children’s education, will, in turn, negatively impact students’ experience of schooling, and risk their own disengagement with their education.”

“It is incredibly frustrating that the Andrews Government would mislead the Parliament into believing that VALS supports this Bill. We are concerned about the impact this Bill will have on the families most in need of support, and the most marginalised children in Victoria.”

“Giving school principals more power than a magistrate to dictate how parents behave, with none of the safeguards of a court hearing, is certain to create unfair outcomes for Aboriginal children and parents.”

“The Victorian Government should withdraw the Bill and, if they don’t, the Parliament should vote it down.”

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.