MEDIA RELEASE 8 June 2022
Victorian Aboriginal Legal Service (VALS)

The Minister for Child Protection and Family Services, Anthony Carbines, has introduced the Aboriginal Statement of Recognition Bill today despite not providing VALS with an opportunity to meaningfully engage in the development of the proposed legislation

We have serious concerns about the impact of this Bill, should it pass the Victorian Parliament. We hope that the Parliament will appreciate the need to engage in a proper and fulsome consultation process.

When Minister Carbines was sworn in, VALS wrote to him requesting a meeting and, despite a number of attempts, the Minister has declined to meet with VALS despite having a reform agenda that includes several pieces of legislation that affect the way Victoria’s Child Protection system and Courts would treat Aboriginal children and young people, and their families. It is unclear to us as to why the Minister does not believe our voice is important.

It was beneficial that the Aboriginal Children’s Forum was heavily engaged in the process, and we urge the Minister to maintain his engagement with this mechanism and its important work. We work closely with other ACCOs on a regular basis and place tremendous value in these relationships and the incredible skills and expertise they hold. ACCOs have central tenets of culture, community and connection in common but have different roles whether it be health, education or legal services, which inform their positions and advocacy.

Our problem with this Bill is that the process and decisions made by the Minister have not been appropriate, and what feedback we, as an Aboriginal Legal Service representing families in this space, attempted to provide about the potential negative impacts and missed opportunities of the Bill, but the Department would not engage. In the weeks before the Aboriginal Statement of Recognition Bill was tabled in Parliament, we were allowed to fleetingly view the Bill, in a meeting, but were not afforded the ability to meaningfully engage in the process and were advised that the Bill would not be changed to account for our concerns.

VALS believes that the drafting of the Bill could be improved by properly accounting for United Nations Declaration on the Rights of Indigenous Peoples. The Bill is limited in its scope because it cannot be used to bring civil action. There are many vague statements in the Bill that are potentially tokenistic, allowing the Government to claim they support Aboriginal Self-Determination without actually doing anything to enable it.

In his inaugural speech to Parliament, Minister Carbines said “I come to this place… to fight for people’s rights. I commit to do so with decency and integrity.” We urge him to deliver on this commitment.

Quotes Attributable to Nerita Waight, CEO, Victorian Aboriginal Legal Service

“This year, the Victorian Government launched a reparations scheme for the Stolen Generations, 25 years after the Bringing Them Home Report recommended it. But our children continue to be taken from their families at alarming rates. According to the Wungurilwil Gapgapduir report, Victoria has the highest rate of Aboriginal children in out-of-home-care and the highest rate of Aboriginal children on care and protection orders.”

“It is difficult to understand how a Government that has accepted the harms done by previous governments would push through with law changes that will potentially contribute to a system that is already battling to address its systemic flaws.”

“The Victorian Parliament needs to ensure that the Government engages in a proper consultation process that takes account of differing views in this contested space, in order to deliver the best system for vulnerable children, young people, parents and carers.”

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.