MEDIA RELEASE 17 February 2022
Victorian Aboriginal Legal Service (VALS)

VALS is disappointed by the Andrews Government’s response to the landmark Our Youth, Our Way report. The Andrews Government has decided to continue putting 10 year olds in prison and refused urgently need reforms to the state’s punitive bail laws.

This week we marked 14 years since the National Apology to the Stolen Generations. The truth is that the Stolen Generation policies never ended, and children today are taken away from their families not only by child protection, but by incarcerating them in youth prisons. Today’s announcement makes it clear that the status quo will be maintained.

The continuation of this cycle will have generational impacts. While Victoria plans a redress scheme for the Stolen Generation, we are creating a new Stolen Generation every day. We know what our children need. As the world’s oldest continuous culture, we have been raising our children for tens of thousands of years with a strong connection to community, culture, and Country. The child protection system and youth prisons are destroying those connections. When you say sorry for doing harm, you are supposed to stop doing it.

The Andrews Government claims to support Aboriginal Self-Determination, but it supported less than half of the recommendations of the Our Youth, Our Way report. Self-Determination is not a seat at the table or a negotiation. It is Aboriginal people having control over the issues that affect our communities and particularly our children.

The Our Youth, Our Way report was the result of extensive work by the Commissioner for Aboriginal Children and Young People and the Commission for Children and Young People. Aboriginal and Torres Strait Islander children and young people were widely consulted, as were the Aboriginal Community Controlled Organisations that provide support services for them. It is a commendable piece of work that reflects what our communities want.

The Andrews Government’s refusal to raise the age of criminal responsibility to at least 14 years old will mean that many of our children will continue to have their futures destroyed by the systemic racism that sees them overpoliced and overincarcerated.

By maintaining the current punitive bail laws, Aboriginal and Torres Strait Islander children, and all children, will continue to be subjected to the same draconian rules as adults. This means that more of them will be held on remand where they will be traumatised and institutionalised in prisons.

No government strategy has delivered justice for our children or our communities in over 230 years of colonisation. Only Aboriginal Self-Determination can do that and VALS will continue to fight for real Self-Determination for our people.

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

“The Our Youth, Our Way report is an important piece of work and we are disappointed that it has not been fully accepted by the Andrews Government. All of our communities, especially our children and young people, devoted so much time and effort to ensure the report was a path towards the better future that our children deserved and the Andrews Government has refused to support that vision.”

“Instead of a better future based on connection to community, culture, and Country, the Andrews Government has announced they will continue to take our children away. It is a shameful announcement, particularly because it comes in the same week as sorry day. Politicians apologise, but governments never change.”

“Aboriginal Self-Determination is when we have control over the issues that affect us. It’s disappointing that the Andrews Government continues to fail in this regard as witnessed by their inability to accept all of the recommendations of the Our Youth, Our Way report.”

“Victoria will continue to throw 10 year old Aboriginal children in prison, often on remand, before they have been convicted of anything. This is a terrible policy that goes against expert advice. No child is rehabilitated in prison, they are institutionalised and traumatised, often for life. Putting children in prison ruins lives, families, and communities.”

“Raising the age of criminal responsibility to at least 14, ensuring no child under 16 is ever incarcerated and undoing the terrible mistake the government made with its current, punitive bail laws is a bare minimum. Anything less is shameful.”

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.