VALS strongly opposes preventative detention forming part of the COVID-19 response

VALS emphasises that any deprivation of liberty, even during a public health emergency, must not be arbitrary. The Charter of Human Rights and Responsibilities Act 2006 (Vic) states that a ‘person must not be subjected to arbitrary arrest or detention.’ Early on in the pandemic, the UN Working Group on Arbitrary Detention called ‘upon all States to respect the absolute prohibition of arbitrary deprivation of liberty as public health emergency measures are introduced to combat the pandemic.’ At a time when it is crucial for the Victorian community to have confidence in the Government, when the focus should be on clear public health messaging and support for people to comply with directives, when the transmission rates and active COVID-19 cases have decreased significantly, the Government intends to introduce preventative administrative detention as part of its COVID-19 response. This response is not, in VALS’ view, proportionate and is certainly not the least restrictive means to achieve the intended public health outcomes. In fact, given that the legislation focuses on potential, rather than actual, non-compliance by individuals, and relies on the suspicion of authorised officers (including, under the proposed changes, those who do not have the relevant public health expertise and experience, such as police officers), it is unclear how this strategy will achieve the desired outcome at all. Under the proposed legislative amendments under the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020 there is no guidance as to the basis on which an authorised officer may subjectively form a ‘reasonable belief’ of future non-compliance, nor are there protections by way of review or oversight, either internally (such as by the Chief Health Officer) or by an independent body. There is also no guidance with regards to the length of time people may be detained. Quotes attributable to Nerita Waight, CEO of Victorian Aboriginal Legal Service: ‘The proposed changes are another example of the Victorian Government policing the pandemic, and relying on punitive measures such as fines, rather than relying on clear public health messaging and supporting people to comply with directives. The proposed legislation would enable individuals without the requisite public health expertise and experience to pre-emptively detain people who are suspected of being likely to refuse or fail to comply with public 321 online casino health directives. People could be detained because an authorised officer, such as a police officer, forms the view that they will not comply with directives in the future, not because of an actual failure to comply. The Government has not demonstrated why this legislation is necessary, and VALS is of the view that even with additional safeguards and protections, preventative detention such as that proposed in the Omnibus Bill is arbitrary and should not form part of the Government’s strategy to combat the pandemic. The Human Rights Charter does not permit arbitrary detention, and the UN Working Group on Arbitrary Detention has reminded governments that the prohibition on arbitrary detention is absolute, even during a public health emergency such as COVID-19.  VALS is concerned that these laws could have a disproportionate impact on the Aboriginal community, and notes the very real risk that vulnerable and marginalised groups, such as people who are homeless, who have disabilities, or who do not have the same capacity to comply with directives (for example, people experiencing family violence at home) will be discriminated against and unfairly targeted. 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.