23 April 2021

At the Meeting of the Attorneys-General, on 31 March 2021, a decision was made to engage in discussions regarding raising the minimum age of criminal responsibility out-of-session. After almost 4 years deliberating on this issue, and hindering reform that is urgently needed, the Commonwealth Attorney General’s Department has decided that raising the age of criminal responsibility (RTA) is an issue to be determined by respective States and Territories.

The Government’s failure to RTA has been widely criticised as failing to meet its obligations under the United Nations Convention on the Rights of the Child (CRC), at the State, national and international level. Yet, the Attorneys-General have collectively made the decision to not prioritise progressing RTA as we mark the 30th anniversary of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC).

VALS highlights that Australian ratification of the CRC and the publication of the final report of RCIADIC were events that occurred within months of each other, 30 years ago. VALS has consistently advocated for the implementation of the recommendations of RCIADIC, as well as the rights accorded to Aboriginal and Torres Strait Islander children under existing international human rights norms.

VALS calls upon the Victorian Government to follow the example set by the ACT Government by immediately committing to raising the age, and clearly stating timelines for establishing the legislative framework underpinning this reform.

Given the profound importance of RTA, particularly in regards to Aboriginal and Torres Strait Islander communities, VALS reiterates the following:

  1. The age of criminal responsibility should be increased to no less than 14 years of age, with a minimum of 16 years of age for detention in a custodial facility. This is consistent with contemporary international human rights standards.
  2. Focus should be on prevention and early support, as well as rehabilitation, rather than punishment.
  3. Rehabilitative approaches should be culturally appropriate; proactively minimise the risk of further trauma to the child; maintain the integrity of the family unit; and consciously serve to mitigate the risk of future offending.

We encourage everyone to listen to VALS Justice Yarns – RCIADIC 30th Anniversary chat with Aunty Rosemary Roe. Rosemary is the aunt of G.J. Roe who died in custody in 1997, aged 11 years old. The decision to postpone raising the age of criminal responsibility has very real consequences for Aboriginal children and their families.

You can find out more about why the Victorian Government should RTA by visiting VALS’ #14Reasons page.

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.