Friday 26th March 2021

Joint Media Release from Djirra and Victorian Aboriginal Legal Service: No Justice, No Peace – It is time for a Victorian Aboriginal and Torres Strait Islander Social Justice Commissioner

We call on the Victorian Government to immediately establish an Aboriginal and Torres Strait Islander Social Justice Commissioner.  The Commissioner must be sufficiently resourced and empowered to undertake an independent review into the implementation of the Royal Commission into Aboriginal Deaths in Custody recommendations.

This year marks the 30th anniversary of the final report of the Royal Commission into Aboriginal Deaths in Custody. The recommendations of the Commission have never been fully implemented, there is still no accurate evaluation nor
accountability for the implementation of those 339 recommendations. Instead,
the Aboriginal community has grieved at least 470 deaths in custody.
 

For generations, our people have been thrown into prison, have died in custody.

 Djirra and VALS condemn the Victorian Government’s announcement of an $188.9 million expansion of the Dame Phyllis Frost Centre women’s prison, including 106 new prison beds. The construction joins a lengthy and shameful list of prison construction projects under this Government, including Cherry Creek, Chisolm Road, Middleton, Barwon, Hopkins, Ravenhall, and Marngoneet facilities.

Expanding prisons, in the context of punitive bail laws, at a time when the Government should be meeting their commitment to Close the Gap, demonstrates a reprehensible level of apathy towards the health, welfare and lives of Aboriginal and Torres Strait Islander people.

The Victorian Government’s bail laws are a clear contradiction of the Royal Commission’s recommendations and have resulted in an increase in the number of Aboriginal people being trapped in the criminal legal system.

The urgent need for bail reform was made clear by the tragic death of Veronica Nelson on 2 January 2020. Ms Nelson, a proud Yorta Yorta woman, was refused bail after being arrested for shop lifting and remanded at the Dame Phyllis Frost Centre.

In Victoria, Aboriginal women make up 13% of the prison population, but only account for 1% of the general population.

80% of Aboriginal and Torres Strait Islander women in prison are mothers. The upgrade to the women’s prison includes facilities to accommodate young children who have been approved to live with their mothers. Mothers and their children do not belong in prison.

High incarceration rates of Aboriginal women directly impact on child removal rates, rights of Aboriginal children and has ongoing devastating impacts on Aboriginal families and communities.

Specialist services for Aboriginal communities are consistently underfunded and operate beyond capacity. How does this Government justify funding prison expansion over adequately funding prevention and other specialist legal support services?

From the moment of colonisation, Aboriginal people have been subjected to the destruction of our families and communities by governments and justice systems that marginalise us and criminalise us.

The Victorian Government is required to implement a new detention oversight body by January 2022 as part of our Optional Protocol to the Convention against Torture (OPCAT) obligations. VALS has consistently aske the Victorian Government to establish a consultative process to ensure the oversight body operates in a culturally appropriate way.

“Prison is proven as not a safe place for Aboriginal and Torres Strait Islander people. Djirra knows that it is especially not a safe place for women. Expanding women’s prisons at a time when incarceration rates for Aboriginal women have fallen sharply, and deaths in custody continually fails to be addressed, does not keep Aboriginal women safe. 90% of Aboriginal and Torres Strait Islander women in prison have experienced physical or emotional abuse, including family violence and sexual violence.”

Antoinette Braybrook, CEO Djirra


“We need an Aboriginal and Torres Strait Islander Social Justice 
Commissioner to ensure the unfinished work of the Royal Commission into Aboriginal Deaths in Custody is finally completed. The lack of transparency and accountability by State and Federal Governments over the last 30 years is why there has been at least 470 Aboriginal deaths in custody since the Royal Commission. We also expect the Government to be more open with regards to the implementation of a new detention oversight body this year, as required by the UN under our OPCAT obligations.”

Nerita Waight, CEO VALS

Media Contacts

For further information or to arrange an interview please contact the following Communications and media officers:

For Djirra  Hineani Roberts mcadvisor@djirra.org.au
For VALS  Patrick Cook pcook@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.