24 June 2022

VALS opposes the creation of the new indictable offence of “grossly offensive public conduct” as the need for the proposed offence has not been sufficiently demonstrated. The Government should not be prioritising the creation of more criminal offences, when it continues to ignore much needed reforms that will have far greater impacts.

There is no “gap” to fill as existing offences adequately and appropriately cover the conduct that would be captured by the new offence. We know that public order offences are used to disproportionality criminalise people who are already over-represented in the criminal legal system, including Aboriginal and/or Torres Strait Islander people. There is a clear risk that Aboriginal people will also be disproportionality affected by this offence.

Whilst the Government focuses on responding to one discrete incident, reforms that are urgently needed to prevent Aboriginal deaths are left languishing for years.

In June 2022, the Victorian Coroners Court heard compelling and condemning evidence in relation to the death of Veronica Marie Nelson, a proud Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman, who passed away in custody on 2 January 2019. Three years have passed and the laws and policies that contributed to her death have not been changed.

Instead of expanding and reinforcing criminal responses, the Government should be urgently reforming the punitive bail system, raising the age of criminal responsibility to at least 14 years and providing culturally safe healthcare in prisons.

The priority being given to this legislative reform also represents a broader trend of criminalisation and punitive responses. The Victorian Government should stop investing in police, building new prisons and expanding police powers and criminal offences. Instead, they should be investing in measures to support people to stay out of the criminal legal system.

Quotes Attributable to Nerita Waight, CEO of VALS

The Government should not be spending resources creating more criminal offences, when it continues to ignore much needed reforms that will have far greater impacts, particularly on marginalised and racialised people.

Instead of focusing on criminal responses, the Government should be urgently reforming the punitive bail system, raising the age of criminal responsibility to at least 14 years and providing culturally safe, equitable healthcare in prisons.

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.