VALS is calling for a human rights compliant, health drive response to confirmed COVID-10 cases in detention


Key Facts about the COVID-19 in detention

6 prisons and 2 youth detention centres have gone into lockdown, after staff and people who are detained have tested positive for COVID-19

  • The Government has a responsibility to implement measures to keep everyone safe and healthy, especially the people who are in its care. People in detention are incredibly vulnerable, unable to take steps like the rest of us, such as physically distancing, to protect themselves.

  • Any 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 the Government has an obligation to provide equivalency of medical care to people in detention.

  • Many people come and go from prisons including prison staff, contractors, health professionals,  educators, as well as people who are detained and released, on a daily basis – this means that any detention COVID-19 outbreaks will impact on the rest of the community.

  • The overrepresentation of Aboriginal and Torres Strait Islander people in the criminal legal system means that they will be disproportionately impacted should there be an outbreak of COVID-19 in Victoria’s prisons. Aboriginal and Torres Strait Islander people in custody are also particularly vulnerable to COVID-19, with many people having underlying medical conditions. They should be among those who are prioritised for release from detention.

  • Releasing people from detention is an essential part of a comprehensive and responsible public health strategy.

VALS is calling on the government to immediately release people from detention via

  • Administrative leave on health grounds for those most at risk of COVID-19 and most impacted by restrictive measures – like increased use of solitary confinement – being used to try to contain the virus.
  • Using existing legal powers to grant 14 days early release to people in prison who are close to the end of their sentence. Noting that 25.5% of men and 40.9% of women serve terms of imprisonment that are less than one month.
  • Granting parole or leave to people in prison who pose a low risk to the community if released.
  • Granting parole or leave to children and young people, so that they can be with, and be supported by, their families and community during this ongoing public health emergency; and
  • Making bail more accessible for children, young people and adults on remand, who are yet to be found guilty of any criminal offending and who pose a low risk to the community if released. Around half (46.2%) of ATSI people in prison (and 61.4% of ATSI women) are in prison purely on remand

We also ask for the Government to enact legislation, like in New South Wales, to facilitate the early release of people in prison serving sentence who are identified as particularly vulnerable to the impact of COVID-19 and then make use of such legislation to reduce the number of people in our prisons.

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.

"We know the news that there are increases in suspected prison COVID-19 cases will distress Aboriginal Communities across Victoria. We encourage our community members who have welfare concerns for a loved one in custody to reach out and notify VALS so we can undertake welfare checks and ensure our mob are feeling safe and receiving the supports and care they are entitled to."
Nerita Waight

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.

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.

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.