Delivered by George Selvanera, Acting CEO, on Thursday 21 October 2021

CHECK AGAINST DELIVERY

Thank you very much Chair. First let me acknowledge that I am coming to you today from our offices in Melbourne on the unceded lands of the Wurundjeri people. I pay respect to their elders, past, present and emerging and of that of all the Aboriginal nations here in Victoria.

As you know, the Aboriginal community established VALS for the Aboriginal community nearly 50 years ago. Our initial focus was the gross over-representation of Aboriginal people in custody and ensuring culturally safe legal assistance and support to help Aboriginal people navigate the criminal justice system in Victoria. Services have expanded significantly since then, although demand for our services far outstrips our available resources. At the same time, our assistance in criminal law matters continues to be as important as ever, because unfortunately the Victorian criminal justice system does not work for Aboriginal and Torres Strait Islander people.

We welcome the Committee Inquiry and the opportunity it affords to recommend changes that address the unprecedented and costly expansion of the incarcerated population and the over-representation of Aboriginal people of all ages and genders at each stage of the criminal justice system. For the Committee, this is a chance to make recommendations for improving trust and the confidence of Aboriginal people in the criminal justice system. That requires 5 main actions:

  1. Working with Aboriginal people and organisations to decide how a criminal justice system works for Aboriginal people. And I use the word decide deliberately. Self determination is not simply consultation with Aboriginal people, but rather it is Aboriginal people deciding what matters in the way and what of reform.
  2. Recognising that our criminal justice system is rooted in Australia’s violent colonial history. When you consider that much of our criminal justice system was established and evolved during an era that nearly everyone concedes was endemic with racism from dispossessing Aboriginal people from their land and criminalising trespass, removing children from families in the stolen generations and where out-of-home care then and now remains one of the single most important markers of whether someone will interact with police and prisons and so on— it is pretty intuitive to accept that intergenerational trauma and disadvantage flows from this and that Aboriginal people are over-represented at every stage of it. Systemic racism means that we have systems and institutions that produce racially disparate outcomes, regardless of the intentions of the people who work within them. What we need is Aboriginal people deciding how to craft a criminal justice system that meets its objectives of prevention, deterrence and offender accountability.
  3. It is about recognising that we need to invest in prevention. As the Corrections Commissioner and the Victoria Police said at the Royal Commission into Mental Health identified underfunding of community services is a key driver of growing police contacts and incarceration numbers. This failure is hugely costly, literally billions of dollars annually, but it is also expecting too much of prisons and police. They are high cost residual services, not low cost prevention services.
  4. It is about embedding deterrence of people at each step in the pathway through the criminal justice system, not spider web like trap people deeper within it.
    When a 10-13 year old engages in offending behaviour this should trigger an immediate examination of what is happening with that child and family and what early help can be provided in a culturally safe and relevant way to prevent and deter that child from entering criminal justice processes. Yet in Victoria, that child can be criminalised, removed from their family and placed in youth detention, increasing their likelihood of future offending and incarceration.
  5. We need evidence based policy making and much more transparency about how decisions are made. For instance, public health approaches to public health problems, such as addiction. Similarly, the broken bail system now means that the main reason Aboriginal people are in custody is because they are on remand, mostly for alleged low-level offences which in instances where the person is found guilty, almost never result in imprisonment.
    To make matters worse this has disproportionately impacted Aboriginal women, 80% of whom are mums who are then separated from their children. Those children being at risk of being placed in out of home care, a staging post for more interaction with police and criminal justice.

As we say in our written submission, given the plethora of inquiries and royal commissions into the CJS, it seems safe to say that we have reached a consensus. That is, that the current system and approaches are not working. We need serious reform that respects Aboriginal self determination, is free from racism and discrimination. Is grounded in evidence and is accountable to the community it serves. Thank you.

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.