2 August 2022

The Mental Health and Wellbeing Bill was supposed to enable a revolution in mental health care, but will still allow abusive practices. Aboriginal and/or Torres Strait Islander people will pay the highest price if the Victorian Parliament passes such a disappointing Bill, without making the necessary amendments first.

VALS wants to see the Bill improved with amendments to ban the use of solitary confinement and remove the expansion of police powers, currently in the Bill. VALS also wants the Victorian Government to make a real commitment to independent detention oversight that includes places where people are detained for mental health reasons.

Solitary confinement

Research by VIMIAC shows that Aboriginal people are secluded and restrained at higher rates than other people.

The Bill does not go far enough to address practices within the mental health system that violate human rights law, including prolonged solitary confinement.VALS believes that practices that amount to torture, cruel, inhuman or degrading treatment must be eliminated immediately. The new Act should protect the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment, in line with Section 10 of the Victorian Charter of Human Rights and Responsibilities.

It should also explicitly prohibit solitary confinement and prolonged solitary confinement, using the UN definitions of those practices.

Independent detention oversight

The shortcomings in the new Bill highlight the critical need for independent detention oversight, in compliance with Victoria’s obligations under theOptional Protocol on the Convention Against Torture, Cruel, Inhuman and Degrading Treatment and Punishment (OPCAT).

OPCAT requires Australian Governments to establish a National Preventive Mechanism (NPM) to carry out independent visits to “to any place under its jurisdiction and control where persons are or may be deprived of their liberty.”  

The Victorian Government had an obligation to establish independent detention oversight by January 2022. It failed to meet that deadline and has made no progress that would suggest it is committed to this much needed reform.

Independent and culturally appropriate oversight of places where people are detained under the new Mental Health and Wellbeing Act must be a priority.

Police must not have a role in healthcare

VALS strongly supports health responses to health issues. The Royal Commission recommended that wherever possible, mental health crisis responses should be led by health professionals – not police.

We strongly oppose the expansion of powers for Protective Services Officers under the Bill, which is fundamentally at odds with the shift towards a health-led response. We are strongly of the view that, instead of expanding police powers, the Bill should end police involvement in the response to mental health crises.

Quotes Attributable to Nerita Waight, CEO of VALS

“Systemic racism within the mental health system means that Aboriginal people are disproportionality affected by harmful practices such as seclusion.” 

“The Royal Commission exposed serious harm within the mental health system and created hope that these issues would be addressed. Yet the Mental Health and Wellbeing Bill fails to meet that promise.”

“It is disgraceful that our mental health system does not explicitly prohibit torture and ill-treatment. At a minimum, solitary confinement and prolonged solitary confinement must be prohibited.”

“The Government must make progress on its commitment to implement independent detention oversight in Victoria, including places where people are detained under mental health laws. Victoria has invested billions into police and prisons – they have a responsibility to invest in proper oversight too.”

“Victoria Police are not mental health professionals. They do not have a role to play in the mental health system. The Bill should protect vulnerable people from Victoria Police, not allow police and PSOs to criminalise even more people with mental health issues.”

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.