2 September 2021

VALS welcomes the Victorian Government’s announcement today that they will proceed with legislation to make Victoria a fairer place for everyone.

The Victorian Government has committed itself to implementing the recommendations of the Anti-Vilification Protections Inquiry tabled by the Legal and Social Issues Committee in March.

VALS worked closely with Charmaine Clarke to support her advocacy for these proposed changes. Charmaine was subjected to vilification in 2019 and was let down by the current anti-vilification laws that failed to hold the perpetrator to account.

Charmaine’s experience of vilification highlighted the unique way Aboriginal and/or Torres Strait Islander people experience discrimination in Victoria without access to justice. Laws that allow for perpetrators to be held to account are an important structural reform.

These laws will require an effective implementation process to ensure the promise of a fairer Victoria is fulfilled. VALS looks forward to working with the Victorian Government to do just that.

Particularly, we note that the Government will be considering whether further funding will be required for the provision of legal information and assistance to navigate the system for reporting vilification.

If Aboriginal people are not aware of their rights and are not supported through the process, if VALS cannot undertake strategic litigation in this area, these reforms will fail to achieve their objectives. It is critical that VALS is properly funded to provide culturally safe legal education, information, advice and representation to Aboriginal people in Victoria.

Quotes Attributable to Lee-Anne Carter, Statewide Community Justice Programs Leader, Victorian Aboriginal Legal Service

“Aboriginal communities are subjected to racial discrimination, systemic and structural exclusion on a daily basis. The Victorian Government’s anti-vilification reforms come after a long fight by so many communities.”

Any changes should be done in consultation with Aboriginal communities and led by communities. Too often processes and procedures are designed to exclude our participation, and this perpetuates the ongoing trauma, racism and discrimination faced by our communities. Changes need to ensure that Aboriginal communities can participate in a culturally safe way that provide assurance that our voices will be heard.

“A lot of credit has to go to Charmaine Clarke. It is not easy to make a stand. It is even harder to continue the fight for many years to make change. VALS is incredibly proud to have been a small part of Charmaine’s journey by supporting her advocacy.”

“VALS hopes that there will be bipartisan support in the Victoria Parliament for the proposed legislation, as there was for the committee report that made the recommendations for this legislation.”

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.