Justice in the Australian Colony

I Now Live In The Colony Called Australia

The Colon-y I live in Called Australia.

SS Himalaya
SS Himalaya

As privileged white refugees vacating the colon-y of Kenya after its peoples had obtained independence from their colon-ial British masters as the cries of Uhuru and Harambee uttered by their fearless leader Jomo Kenyatta, bought the people together.

Uhuru Means, “Freedom from white colon-ial oppression” in Swahili

UHURU

I then entered the second chapter of my life and development in Melbourne, as a white person whose native language was English living in the leafy suburb of Kew, sheltered by a farther who ran the Legal Studies Department at Melbourne University. I believed I lived in a country where all people were treated as equals and that I was safe from the oppression of colon-ialism.

After 620 moons of ignorant bliss; it was then, that I encountered the likes of the law firm Russell Kennedy, who became the executors of my late mother’s estate. I was subjected to a rude awakening as I was introduced to the reality of evil in Australia, which is disguised under the cloak of Justice.

I discovered I was living in a place where persons labelled as lawyers were unaccountable for their actions, when performing acts of terror upon the families of deceased persons, while administering their estates.

This can only occur in a colon-y. Note a colony is a place where the elite who in Australia are members of the exploitive Judicial structure are placed in positions of unaccountable power over the residents of the colony.

Like any person of true Irish heritage, born with a black man’s soul I began to dig. I can only describe this journey of horror and revelation as an adventure into the inner workings of the Thunderbox. I call it down under the thunderbox or the intricacies of the colon-ial choo. Choo is the word used for toilet in Swahili, which more often than not was a large deep hole dug into the ground “a thunder box”.

When I arrived in Kenya at the grand old age of three, (39) moons from a recently liberated Ghana, the country of my birth, the British hung a hundred Mau Mau fighters in one day, Welcome to how the colon-ial power structure operates. During the Mau Mau war over 1000 people were executed, note at the time there were no African born (black) lawyers, the only lawyers available to defend these brave souls were educated in England and were privileged white men, what hope did they have in a court system set up by the colon-ial power whose sole purpose was to exploit the village and the villagers who lived there. The fact that their homes had been stolen from them and their families were dying from starvation had little to do with the judge’s decisions.

As I grew up in this colon-y I would have recurring dreams of my family being butchered to death by black attackers while sleeping at night in the house. This was the reality of living and growing up in a British Colon-y in Africa.

Fortunately, as I child I had the opportunity to explore the inner workings of the termite colonies that had decided to set up camp in our garden. My task was to dig down into the colony and extract the queen termite, thus bringing that particular settlement to an end. Little did I realise that many moons later in life, I would encounter a similar yet far more destructive colony of white ants disguised in the form of the self-serving unaccountable Victorian Legal Profession.

As I travelled into the workings of the thunderbox, I realised that all wars are created to plunder. Governments create armies and dress people up in unforms, those who survive the trauma of the battlefield return home and get a medal pinned to their chest. Many find life as civilians very difficult to adjust to and do form criminal networks as is shown in history.

However, in Australia under its colonial structure there is a far more significant and influential group. It is those who have been born into privilege and are enabled through that historical linerage (some of whom have genetic links related to the Rum Corp) to join the legal profession, another secret army who have to go through a rigorous induction programme, are well scrutinised and if found to work against the exploitive colonial judicial structure are labelled as traitors and banished into obscurity or quite simply hounded to death.

The members of this army are always polite and use the shadow of justice to pretend they are caring for the people of the village but in reality, they are, on the majority of occasions just looking at their own reward. Any lawyer who has the courage to expose other lawyers’ indiscretions to the court, knows that their own career within the profession will be short lived and frowned upon by those in superior positions of power. It is not a good tactic for survival as a lawyer to bring the legal profession into disrepute.

With this exploitive unaccountable colon-ial imposed judicial structure currently operating in eight separate jurisdictions, all with different laws, none of which respect family of community, in a land without a treaty formed off a genocide; I ask the question?

Where does it leave us the villager?

To put it bluntly after my journey down under the thunderbox,

Up Shit Creek without a paddle!

Now my reoccurring dream has changed. I am naked within a wooden panelled court room surrounded by lawyers wearing white collars, black cloaks and horse haired wigs. pecking at my flesh as they turn it into $100 bills.  Always the dream ends with me left with a skull and my intestine intact, I guess they find the colon as a part, that is sacrosanct and thus leave it alone.

The Awakening in the Colon-y of Australia.

Yes, we are merely a Colon-y ruled by self-serving unaccountable lawyers.

We live in a country where the Judicial Structure is formed upon a genocide. “Terra Nullius” A place where the fabric of the laws of the land has no respect for family or for community, where there is no Treaty with the first nations people of this land.

The laws of this land are constructed by the legal profession in order to support an exploitive colonial economy.

These laws are constructed, administered and interpreted by lawyers.

Whenever there is an inquiry or royal commission into the workings of this industry and recommendations are made by these authorities they may as well be

 “just writings in the sand”.

 How can you suggest such heresy?

Well, here is the proof, the treasures retrieved from my torturous journey into their pit of hell. 

There are five reports which highlight the failings of the legal industry to care for the families and communities that form our society. All five reports recommend that the legal profession implement changes to their core modus operandi to make them accountable to Australian consumers of their services which are the families and communities that form our society.

“The reports” (The Treasures I discovered on my journey)

  1. 2009 Victorian Ombudsman’s Report on The Victorian Legal Services Commissioner.

2.The 2013 Productivity Commissions Access to Justice Report

 3. 2013 Victorian Law Reform Succession Law report

4. Royal Commission into the Management of Police Informants   (LawyerX)

5. 2022 Yoorook for Justice Report

These five reports point out the very serious issues which are currently present within Australia`s legal system. Each report contains a number of recommendations which illustrate the need for the legal profession to become accountable to the people they service, which are the families and communities of Australia, referred to in legal speak as consumers apart from Yoorook, which identifies the customers as people and members of family groups.

It is important to have in mind the fact that these inadequate legal structures were formed out of a colonial settler regime and the mindset of that colonial formation is still very much alive and well within the contemporary legalistic landscape of this country. 

It needs to be noted that nearly all of the recommendations for improvement have been ignored by the legal industry and have not been implemented into the system yet alone monitored to evaluate whether or not there is an improvement.

The reason being is that the colonial power structures which formed over two hundred years ago are not prepared to relinquish their grip on the reins of power, purely because of self-interest and their own sense of omnipotence.

The Victorian Ombudsman’s 2009 Report on The Victorian Legal Services Commissioner has never been released to the public, despite being given to the Attorney General, and was never released to the Victorian Parliament. This document highlights serious concerns about the way complaints by consumers of legal services are handled by the only authority in Victoria that has the power to investigate complaints against lawyers.

Now the way lawyers behave and the way the culture of the lawyering business functions affects every single person who lives in Victoria, because it affects how the courts function, how the jails, the parole boards the child protection workers, the prisons, and all other institutions where people who are trained lawyers play a key role in the decision-making process. If the regulator of this profession is not up to scratch the whole systems performance is jeopardised. 

The Productivity 2013 Access to Justice Report dedicated a whole chapter focusing on the need to ensure the legal profession understood its obligations under Australian Consumer law with regards to the services it provides to its customers. The Productivity Commission even recommended:

RECOMMENDATION 6.8

State and Territory Governments should ensure greater consumer focus by legal complaint bodies. The legislated objectives of complaint bodies need to explicitly state that protecting consumers of legal services is their primary purpose. In order to support these objectives:

• complaint bodies should report publicly on outcomes achieved for consumers, including aggregated figures of all disciplinary actions.

• State and Territory Governments should amend enabling legislation to require the involvement of at least two lay representatives in complaint bodies

• there should be a national review of the effectiveness of these complaints’ regimes in three years, including their interaction with the Australian Consumer Law

This recommendation has not been taken up by the Australian legal complaints bodies and no extra resources have been applied to ensure that customer complaints against lawyers are investigated with breaches of Australian Consumer Law at the forefront of the investigation.

Note persons or businesses in the course of business:

Must not mislead of deceive.

Must not engage in unconscionable conduct.

Must not unfairly empower themselves in a contract.

2013 Victorian Law Reform Succession Law report recommended the obvious: That lawyers who are acting as executors be obligated under the Legal Professional Act to be deemed as acting as lawyers. They were forced to do this because it was pointed out to them that if lawyers acted as executors and were not deemed as lawyers they would be engaging in misleading and deceptive conduct unless of course they had a ten-meter sign behind their desks telling the old lady whose will they had constructed in in which the lawyer had somehow become the executor that at that stage they were no longer a lawyer and were free of their obligations under the legal professional act. When they changed that law they realised they would need to write guidelines for these lawyer/executors on how to behave? Hence section (b). Note they never wrote the guidelines. Question why not? One can only assume that if they did write the guidelines it would set out a blueprint on how the lawyer profession should be treating families, particularly at a time of extreme grief which could be difficult, particularly since the judicial frame work and its laws have no respect for family of community and how would one thus incorporate the two juxtaposing philosophy’s into one document. Another dilemma it posed for the Law Institute of Victoria would have been that once they had written the guidelines families who had been abused by previous lawyer/executors could have the ability to form a class action and sue the profession for its past sins.  That could have put a very deep hole into the resources of the Fidelity Fund. (The Fidelity Fund is the money pit that ensures lawyers, a great deal of which is funded by us villagers when lawyers hold our money in their trust accounts and do not pay us interest, instead that interest pours into the fidelity fund otherwise known as the fiddle fund.)

  • Recommendation

61 The Law Institute of Victoria or other relevant body should make:

(a) uniform rules under the new uniform law that clarify the duties of

legal practitioners in providing executorial services and charging for

those services

(b) in support of these rules, guidelines for legal practitioner executors

on meeting their fiduciary responsibilities.

Royal Commission into the Management of Police Informants   (LawyerX)

The Royal Commission into the Management of Police Informants   (LawyerX) recommended that “the Victorian Government, within 12 months, pursues through the Council of Attorneys-General and the Legal Services Council, an amendment to the Legal Profession Uniform Law introducing a mandatory requirement for lawyers to report the suspected misconduct of other lawyers. The Victorian Government should ensure the Victorian Legal Services Board and Commissioner is appropriately resourced to implement this recommendation. If the amendment incorporating a mandatory reporting obligation has not been agreed within 12 months, the Victorian Government should, within a further 12 months, introduce a mandatory reporting requirement for Victorian lawyers to report the suspected misconduct of other lawyers.”

Shadow attorney-general Michael O’Brien said the decision “protects rotten lawyers and corrupt cops” at the expense of the integrity of the justice system.

By turning its back on former High Court justice Geoffrey Nettle and closing down the OSI, Labor is giving a free pass to all of those who engaged in what our highest court condemned as ‘reprehensible conduct’,” O’Brien said.

The worst legal scandal in Victorian history will end with a whimper because a weak Labor government does not want to give the OSI the power to authorise charges.”

The office of the Special Investigator has been decommissioned.

On 2 February 2024, the Special Investigator Repeal Act 2023 came into operation, repealing the Special Investigator Act 2021 and abolishing theOffice of the Special Investigator (OSI).

The OSI is no longer operational, please see the relevant links below if you require information about the OSI or its statutory functions.

In other words, it will not be a mandatory requirement for Victorian Lawyers to report suspected misconduct of other lawyers!

This did not happen because it certainly would be in the interests of the people who live in Victoria but it would not be in the interests of the legal industry as it would begin to ensure they held themselves to account. This would go against the Exploitive non accountable self-serving Colonial Judicial model which has existed in Victoria from its inception as a colony.

Yoorrook for Justice Report.

Yoorook Justic Report is an extensive expose of the devastation the colonial institutions have bought about on our First Nations People. This cruelty and neglect all sanctioned by an exploitive colonial judicial structure. A structure that has no respect for family or community built into the fabric of its laws. A structure founded upon a genocide on the false premise of Terra Nullius. A structure formed in an occupied land without a Treaty with its first nations people.  

The current legal system, including the crim­inal legal system, is grounded in violence, racism, the lie of terra nullius and denial of justice and Aboriginal self-determination. It is a system that was designed to destroy the oldest continuous culture on earth, and which has not finished pursuing this goal. We continue to see the legacies of historical injustices in the way that our clients are criminalised marginalised, incarcerated and re-traumatised. Until this structural violence is acknowledged and addressed, the legal system will continue to discriminate against Aboriginal Communities and perpetuate the violence that has been perpetrated for the last 230 years”.

The relationships between criminal legal institutions and First Peoples in Victoria have continuously formed within the colonial structure — both as a political process and a mentality. As will be detailed in later chapters, Yoorrook heard of racism and power imbal­ances influencing the services provided by govern­ment agencies, ongoing child removal and family policing, barriers to navigating the courts and legal system, and the cycle of children in the child protection system entering the criminal justice system.

A key recommendation not supported by the Victorian Government is recommendation 6.

6 Strengthening human rights and cultural rights compliance Drawing on (but not confined to) the recommendations of the 2015 Review of the Charter and its response to that review, the Victorian Government, following a public consultation process that includes the First Peoples’ Assembly of Victoria and other First Peoples organisations, must clarify and strengthen the Charter so that it more effectively: requires public authorities to act in a way that is and make decisions that are substantively compatible with human rights including Aboriginal cultural rights, and ensures that public authorities are held accountable for acting or making decisions incompatibly with human rights including Aboriginal cultural rights, including by: i. enabling individuals to bring a legal proceeding in the Victorian Civil and Admin­istrative Tribunal for a remedy (including compensation) against public authori­ties who have made decisions or acted incompatibly with human rights including Aboriginal cultural rights under the Charter, and

  • ii. enabling individuals to rely upon the human rights including Aboriginal cultural rights in the Charter in any legal proceedings, as provided (for example) in section 40C of the Human Rights Act 2004 (ACT).

Parliament is excluded from the definition of ‘public authority’ under the Charter.

Parliamentary committees, courts and tribunals are only ‘public authorities’ for the purposes of the Charter when they are acting in an administrative capacity, otherwise they are excluded from the obligations imposed on public authorities. The decisions made by a judge about the outcome of a hearing is a judicial function and not an administrative one.

Note: When the Colon-ist legal eagles drafted the Victorian Charter of Human Rights they made damn sure that they wrote themselves out of it, The recommendation by Yoorrook would if agreed to open up a can of worms as it would capture the Victorian Judicial structure and also the servants of the court, the lawyers. Under the current ruling colonial power structure there is no way in hell that that will be permitted to be written into law as it would put the villager on a footing that is closer to equal than the current state of affairs. He may even have a chance of being able to climb from the thunderbox and fight on a level playing field.  That is an unheard-of concept within the colonial structure.

Yoorrook is an expose of how our Colonial Legal System has and still is causing immense damage to the people within our society who have been terrorised by it over the past 250 years. You only need to listen to the song “They took the Children away” sung by the great Archie Roach, sadly no longer with us, to get an understanding of the cruelty that still lives within out contemporary society. The reason why we must all work together to eliminate this colonial blight that has taken hold in this beautiful land.

Background of the Legal Profession.

One has to ask why is it that all of these important recommendations of reform of our legal system are made to disappear as does the writing in the sand.

Have you thought that perhaps there is a very powerful unseen force at work. These recommendations once made are transported down into the workings of the thunderbox where they are scrutinised by our legal masters in order that they may be formed into law.

Imagine a group of magicians flying around a cavern and casting spells into a very large cooking pot. The magicians are all bred from the same privileged class and are cocooned within their own social tribes, any recommendations that would make their profession more accountable to the villagers who reside in the colony and reduce the revenue base of the legal profession would of course be contrary to the aim of exploitation and must then be relegated to the fire that keeps the pot of magic spells in motion.

This catacomb has its roots grown from the seeds of colonialism a human institution built upon classism and racism, a structure of oppression, self-sustained by internalised oppression; those with relative power tend to remain in power, while those without tend to remain disenfranchised. In addition, structures of oppression amplify and feed into each other.

To understand how this social dynamic operates there are a few interesting studies that I have included.

DO JUDGES SYSTEMATICALLY FAVOR THE INTERESTS OF THE

LEGAL PROFESSION?

Benjamin H. Barton∗

Refer pg 458-460

“Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that

offers the best result for the legal profession.”

“A closer examination of the nuts and bolts of a judge’s job also demonstrates how critical lawyers are to the work of judging.

 24 In the advocacy system most judges rely on the lawyers to do the great bulk of the work in trying, briefing, researching, or investigating cases.

25 When the system is working properly, the judges sit back and decide cases based on the legal and factual work of the lawyers. I have noted before how this aspect of the judicial incentive structure has led directly to higher barriers to entry, including the requirement of three years of law school and an ever more difficult bar exam—because judges and current lawyers both profit when entry tightens.

26 On a more basic level, most judges probably do not want to face a courtroom of disgruntled lawyers on a regular basis simply because of their ongoing, working relationship.                 

The above factors consider the many conscious reasons for judges to favor lawyers. The subconscious reasons, however, are at least as important. Here the work of the new institutionalists is particularly instructive.

27 The “new institutionalism” defines institutions as “the rules of the game in a society or, more formally . . . the humanly devised constraints that shape human interaction.”28 Under this definition institutions are groups joined by constraining and defining behaviors and thought patterns

.29 The judicial “institution” responds to the world and their job of decising cases as lawyers.

30 Any lawyer or law student knows well the constraining power of the institution of legal thought.

31 Thus, the well-worn trope that law schools teach students to “think like a lawyer” evinces a quite explicit institution-building project.

 32 Virtually every Judge has experienced law school and practice, and they process the world, legal cases, and their jobs in a very particular way.

33 Judges are also likely to have been particularly successful lawyers and are therefore especially apt to be steeped in the institution of legal thought.

34 As a result judges, like everyone else, approach their work with a prescribed set of heuristics, behaviours, and notions about the world.

35 These cognitive institutions likely established their success as lawyers and also can predict their ability as judges.

36 Nevertheless, the imbedded institution of legal thought inevitably leads judges to sympathize especially with lawyers.

37 On a subconscious level, when judges face a question that will impact the legal profession judges naturally react in terms of how it will affect “us” more than “them.” Thus, as a matter of theory, the lawyer-judge hypothesis seems like a natural fit. Nevertheless, lawyers and law professors have had a long- standing blind spot when it comes to judges. We tend to believe that judges are independent adjudicators of the law who disregard their personal preferences and proclivities when they decide cases. Because of this blind spot, theorists have tended to look at the effect of judicial incentives and heuristics around the edges of jurisprudence, looking for evidence of self-interest in judicial short cuts, or administrative duties.38 The lawyer-judge hypothesis, by contrast, proposes evidence of jurisprudential self-interest: areas of the law where judicial preferences and self-interest actually lead to concrete and otherwise inexplicable result”

To run a colon-y successfully the colon-izing nation requires a judicial structure that acts in the interests of the exploitive powers. The investors whose sole purpose is to extract wealth from the occupied land.

“While the colonial government tasked police with generally maintaining order, their primary responsibility was to protect Britain’s property interests and the colonialists’ personal safety. Policing was used as part of the empire’s tools for the larger commercial enterprise of colonization, to maximally generate funds for the mother nation and minimize its costs.”

The families and communities who live on that land, who are required to run the wealth extraction program need to be controlled. This is done in the name of Justice and the need to maintain law and order. A sophisticated system is required to separate those who are allowed to thieve from the rest of the population. A successful system for accomplishing this outcome is to ensure the people who make the laws, administer the laws and interpret the laws are separated from the villagers. These people go through a very sophisticated filtration process.

The process begins long before they enter the world, through the lives of their parents, grandparents their genetic links. A friend of mine once said to me, to become a lawyer in Victoria you must first obtain a degree in arrogance. Nothing could be closer to the truth. To obtain this training you have to be bought up in a home where the values of arrogance predominate, your family has to afford the exorbitant private school fees which will provide the pathway to a university.

At the extreme level the student will live in a university college whilst studying for their law degree. This develops a further filtration process where all of their friends are from the elite of the elite as they are brainwashed by the processes of learning how to become a lawyer.  Once they obtain their degree a LLB. A bachelor in how to be a Little Lying Bastard they then go through further filtration and do their articles. This requires connections because one needs to be employed by a law firm to work as an articles clerk.

I recall asking an Australian friend of mine what was wrong with these people. His reply was very simple and accurate.

They think they are better than all of us!

Benjamin Barton`s paper captures exactly what we are dealing with. In Australia due to its isolated geographical position, we are also dealing with the problem of intergenerational power transfer by the not too bright lot at the expense of the nation’s future. Not a good situation. The three pillars upon which our stability depends upon are the Judiciary, the Executive, and the Parliament. When the Judiciary are corrupted the other two pillars also lose their structural integrity. It has always been that way under a colonial structure but with the advent of neo fascist economics dependent on the free-market philosophy we are headed down a terrible path.  Particularly after seeing how the Regulator of Lawyers colluded with the OPP and the Courts.

In Australia during the past 15 years, we have had a number lengthy and detailed inquiries into how our legal profession operates. These inquiries including a Royal Commission, have created mountains of paper works containing as many words as there are stars in the universe. Each of these inquiries contain recommendations on how to improve the administration of our Judicial system but after so many years it is difficult to find out if those recommendations have been implemented.

It is said that those who come to equity must come with clean hands. But what of those who come to the law with empty pockets? Statistically speaking, most lawyers in Australia come with pockets lined by wealthy families and relatively privileged backgrounds. In comparison, prospective lawyers from low socio-economic circumstances battle systemic biases and disadvantage. Until this changes, the legal profession cannot hope to achieve true diversity.

As Angela Melville, a senior law lecturer and published researcher at Flinders University, wrote in her 2014 report Barriers to Entry into Law School: An Examination of Socio-economic and Indigenous Disadvantage, “Until the early 1970s, the Australian legal profession was almost exclusively the domain of white men from privileged backgrounds.”

While there is no published data about the socio-economic backgrounds of practising lawyers across Australia (the NSW Law Society’s National Profile of Solicitors does not collect it), university student enrolment data offers some insights into the relative wealth of students gaining entry to law courses. This is relevant because these students make up the pool of graduates from which the legal profession can be formed.

According to research by the Grattan Institute, just 10 per cent of high school students enrolling in law degrees across Australia between 2005-2015 came from the lowest quartile of socio-economic status measures as defined by the Department of Education. Almost 60 per cent of law students came from the top two quartiles.

Andrew Norton, a professor in higher education policy at the Australian National University, explains this is largely because the high ATAR entry requirement for law degrees disadvantages students from low socio-economic backgrounds.

“Law is at the lower end of the range for low SES [socio-economic status] enrolment share,” he tells LSJ. “This is primarily due to the relatively high ATARs required for most law courses. Higher SES school leavers dominate the top range of Year 12 performance.

“In NSW, high SES students outnumber low SES students in the 90-plus ATAR group by more than seven to one.”

At the University of Sydney, home to one of Australia’s most prestigious law schools, the ATAR requirement for guaranteed entry to law in 2020 was 99.50. The University of Wollongong offered a slightly more attainable mark of 92.

UNSW Law requires students to undertake the two-hour Law Admission Test (LAT), which assesses students on a range of skills and aptitudes for law, such as problem-solving, comprehension and analysis. The LAT is considered complementary to the ATAR and can assist students from high schools with lower weighted ATAR marks. In 2020, the lowest ATAR for admission to UNSW Law was 88.15.

Even as firms begin to set racial diversity or gender targets – as many Australian mid- and top-tier firms have done recently – socio-economic biases will persist as long as the profession favours those who can afford to dress sharp and “present” well. A study by a coalition of British and Scottish universities, submitted to the UK Social Mobility and Child Poverty Commission in 2015, found that elite firms defined “talent” in recruitment based on factors such as drive, resilience, strong communication skills, confidence and “polish”. The authors pointed out these are traits of middle-class status and socialisation.

There is no similar mapping of the professions in Australia, but Fleming believes we suffer similar problems. Some commentators point to the recent promotion to the High Court of Justice Jacqueline Gleeson, the daughter of former High Court Justice Murray Gleeson, as symptomatic of micro-class reproduction in the legal profession.

“It’s still a very insular profession,” says Fleming. “I have been lucky enough to go and move the admission for graduates who come through our legal centre. You still see there are at least half a dozen people who get up and they are moving the admission for their daughter, or their nephew or their wife.”

As long as the pool of Australian law graduates remains shallow in terms of socio-economic diversity, the diversity of the legal profession can only reach as deep as that shallow pool. Unfortunately, barriers at university still prevent many students from poorer backgrounds trickling in.

Dean of UNSW Law Andrew Lynch believes any lack of socio-economic diversity has ongoing impacts for the rule of law and the development of our legal system more broadly.                   

 “Law affects the lives of every single person in the community and yet the experience of law across our community can be very different,” he says. “A profession that reflects the diversity of our community is one that better understands the needs of the clients it represents. Lastly, a diverse judiciary, drawn from such a profession, is best able to serve the whole community, rather than narrow sectional interests.”

The importance of judicial independence is bolstered by its inherent relationships with democracy, the separation of powers and the rule of law. The Australian Bar Association described an independent judiciary as ‘a keystone in the democratic arch’ and warned ‘that keystone shows signs of stress. If it crumbles, democracy falls with it’. 3 Judge Christopher Weeramantry, chairperson of the Judicial Integrity Group — comprised of Chief Justices and senior judges from a wide range of civil and common law jurisdictions — similarly observed that: A judiciary of undisputed integrity is the bedrock institution essential for ensuring compliance with democracy and the rule of law. Even when all other protections fail, it provides a bulwark to the public against any encroachments on its rights and freedoms under law.

European political domination involved various degrees of control over a peripheral territory as a colony, protectorate, or some other relationship; economic domination involved utilizing the land, Labor, natural resources, and trade of a peripheral territory for the economic benefit of the metropole and its settler population; and legal domination involved instrumental use of law by the colonial state to enforce its political rule and achieve its exploitative economic objectives. 

If we are to see exploitation as central to the colonial story, we need to define it. In its ordinary language usage, exploitation refers to taking advantage of another. Allen Buchanan has argued, ‘to exploit a person involves the harmful, merely instrumental utilization of him or his capacities, for one’s own advantage or the sake of one’s own ends’ (Buchanan 1985, 87). Others have also noted the instrumental and asymmetrical character of an exploitative relationship. Feinberg writes,

The relationship between justice and colonialism may seem straightforward: almost everyone nowadays agrees that colonialism as a system was deeply unjust. But this conceals widespread disagreement over the very nature of colonialism, as well as over the features that make it unjust.

‘Common to all exploitation of one person (B) by another (A) is that A makes a profit or gain by turning some characteristic of B to his own advantage’ (Feinberg 1988: 176). However, there are quite different ways of understanding what it means to take advantage of someone else, depending on whether the unfairness is located in the process, starting point or result. To avoid these technical issues, I will follow Vrousalis’ relationship account of exploitation as domination: ‘(1) A exploits B if and only if A and B are embedded in a relationship in which (a) A instrumentalizes (b) B’s vulnerability (c) to extract a net benefit’ (Vrousalis 2013).

LEGAL PROFESSION UNIFORM LAW AUSTRALIAN SOLICITORS’ CONDUCT RULES 2015 – REG 32

32 Unfounded allegations

32.1 A solicitor must not make an allegation against another Australian legal practitioner of unsatisfactory professional conduct or professional misconduct unless the allegation is made bona fide and the solicitor believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it.

Demonstrative of this fact is that all of the major indices on corruption, governance and the rule of law include indicators for corruption in the judiciary and/or judicial independence. An impartial and transparent judicial system facilitates access to justice by safeguarding due process of law during a trial. The judicial function thus builds public trust in institutions and serves to protect fundamental rights within a polity through its adjudicatory role. It also acts as a check on the power of the executive and legislative branches of government, ensuring the legitimacy of the actions of state institutions and the political system as a whole. As the saying goes, the judiciary is the organ that “watches the watchmen”.

Findings

The tension between the constitutionally-guaranteed independence of the judiciary and the socially-demanded accountability is a distinctive trait of the judiciary that generates corruption risks.

This was demonstrated by the most prevalent reported forms of corruption: bribery and political influence, impacting on both independence and accountability. The research found that the types of cases where corrupt behaviours are most often perceived to occur are criminal cases, followed by general civil cases. The findings on bribery reported interference with judges in order to influence a decision, interference with lawyers in relation to their advice to a client and with court staff to tamper with evidence. It was reported that lawyers can play an active role in bribery as an intermediary of their client. Prosecutors were also susceptible to bribery to tamper with evidence.

  1. 2009 Victorian Ombudsman’s Report on The Victorian Legal Services Commissioner.

The first report that I became aware of was mentioned in The Victorian Ombudsman’s 2009 Annual Report. The Victorian Ombudsman wrote 28 recommendations on how to improve the workings of The Victorian Legal Services Commissioner.  The report was never made publicly available and remains hidden.

 Judging by the comments left on Google by some of the customers of The Victorian Legal Services Commissioner and word on the street despite the huff and puff emanating from this most important regulator of the legal profession it looks very much as if not much has changed.

The Recommendations.

Ombudsman Victoria Annual Report 09

I made 28 recommendations to the Legal Services Commissioner and am pleased to note that it has taken steps to address a number of problems identified in my own motion investigation. I intend to review the Legal Services Commissioner’s implementation of my recommendations over the next year. I also referred the report of my investigation to the Attorney-General for his information, particularly in relation to the inability of the Legal Services Commissioner to re-open cases on the basis of merits.

OMBUDSMAN VICTORIA FINAL REPORT

Investigation into The Legal Services Commissioner’s Complaint-Handling Practices

Summary of Recommendations

I recommend that the LSC:

1. Document a written investigation plan for each complaint to be investigated. An example is attached at Appendix A.

2. Develop guidelines setting out the timelines by which practitioners must respond to the LSC’s requests under section 4.4.11 and if a response is not forthcoming for the LSC to instigate disciplinary procedures.

3. Undertake staff training on the powers afforded to the LSC under section 4.4.11 Practitioner, law practice and others to provide information and documents of the Legal Profession Act 2004 and the exercising of such powers.

4. Ensure the principles of procedural fairness are afforded to both complainants and practitioners in all investigations by developing and implementing guidelines and providing staff with training on this issue.

5. Assist complainants to articulate their complaints, if required if necessary by interviewing the complainant.

6. Review the key selection criteria relating to the positions of manager and complaint officers and so as not to exclude from consideration applicants with sufficient knowledge and experience of the legal system.

7. Develop a training program for all staff to address my concerns about the culture of the organisation.

8. Revise its guidelines dealing with the timelines for dealing with complaints and develop a training program for all staff. In this regard, I note that the LSC engaged Yarrimbah Consulting to review its complaint handling procedures and to develop a training program.

9. Review its standard letters in light of my concerns.

10. Conduct staff training in Plain English letter writing.

11. Develop guidelines on documenting decision-making and ensure that staff be trained accordingly.

12. Publish materials to explain the relationship between negligence and misconduct or professional misconduct. It should also provide more detailed explanations about cost disputes.

13. Advise all complainants of their right to complain to my office about the administrative actions of the LSC. This information should also be included in LSC literature and on its website. Such wording should be developed in consultation with my office.

14. Obtain legal advice on the legality of the LSC’s review policy.

15. Confirm, subject to the above legal advice, the legality of the LSC’s review policy that the LSC advise all complainants that the LSC may open a new file if a complainant provides new evidence, or lodges a new complaint following a decision by a court on the same or similar issues.

16. Publish the above policy on its website.

17. Conduct regular audits on files referred to the LIV and the Victorian Bar to ensure that service standards are being adhered to.

18. Re-evaluate its agreement with the LIV, with a view to retaining more complex matters to investigate.

19. Re-evaluate its lump sum funding arrangements with the LIV and the Ethics Committee of the Victoria Bar to ensure that such a funding model provides the best possible value to the LSC and is transparent and accountable.

20. Complete the reviews of its SLA’s with the LIV and Victorian Bar as set out in the SLAs by the end of 2008.

21. Implement the phasing out of referrals to the LIV and the Victorian Bar within two years.

22. Seek to amend the Legal Profession Act to enable the LSC to review its decisions. [this recommendation referred to in OV Annual Report 2008-2009]

23. Seek an amendment to the Legal Profession Act to enable it to summons witnesses.

24. Review its Enquiry Manual in light of the consultant’s report to ensure that all sections are completed and up-to-date and that the manual provides sufficient guidance to staff on their role and powers.

25. Liaise with the LPLC to investigate ways in which the LPLC can assist the LSC (such as the provision of complaints data) in fulfilling its statutory functions.

26. Develop a process for dealing with practitioners where a complaint is not made out but remedial education or professional development is warranted.

27. Develop guidelines for legal practitioners as to what constitutes appropriate comments to be included in a response to a complaint.

28. Consider whether the Queensland LSC model of dealing with disciplinary complaints at the minor end of the scale should be implemented to allow resources to be freed up for the investigation of more serious matters.

Google Reviews on The Victorian Legal Services Commissioner

Kathleen Holstein

1 review

a month ago

Not actually sure what their role is. We have an admission from the lawyer of misconduct and now they are demanding an onerous amount of evidence to prove what was admitted. 8 months and yet to have a phone call of support or assistance merely demands for more and more proof of what as been admitted. Proved the dishonesty and apparently its our job to further prove it, found out they have had multiple “chats” with the lawyers. Independent is laughable. Still waiting from a week ago for a returned call, the cute part is that the hold message is that they are independent and impartial. I guess admission includes a get out of jail card from their mates at the Commission, Fiona you should be embarrassed at how low the ethics of the Commissioner have stooped. Good news for lawyers, don’t worry they Commissioner has your back!

Ash Lawry

1 review

a month ago

Firstly tried to protect the practitioner who has previously been suspended for 8 years and had trust account fraud in the last 3 years, then recommended that I drop the complaint, when it became too obvious he was out of order, are now …Firstly tried to protect the practitioner who has previously been suspended for 8 years and had trust account fraud in the last 3 years, then recommended that I drop the complaint, when it became too obvious he was out of order, are now trying to raise red herrings to drag it out. It would be comical if it wasn’t serious. Time to go the way of APHRA and have non lawyers reviewing the crooks as they are clearly protecting their own. Complain and don’t accept excuses, delays or persistent demands for information. Watch when they dont respond for months but then expect a reply in 3 days. Keep demanding to escalate, copy in your local member and the attorney general.3

Robert Nickos

9 reviews

3 months ago

I contacted PCL lawyers about conveyancing work and after speaking to one of their lawyers (Brad Mayberry), made my deposit of a large sum of money then silence and weeks of it. All my calls, emails, texts, and messages via their 1300 completely ignored for weeks on end. I eventually did receive a phone call, however, he showed up completely unprepared plenty of um’s, ah’s, and flicking through the document. I then politely offered another week but unsurprisingly he made the decision to not bother showing up. I then received an invoice for a contract review which is a document that I have not received. To be clear the only document that I have received is an invoice for a document that I have not received. I have also contacted them countless times to close the account and have the remaining trust funds returned yet no action. We’ve now clocked 5 months of silence.

I then contacted the Victorian Legal Services Board and Commissioner (Rosa Reynolds). Not sure what they did but after 2 months from when the case was finally opened no action from PCL lawyers. What was Commissioner’s response they called me a liar, threw fake evidence in my face, treated me like an idiot, sent me in illogical circles, and then told me to “deal with the law practice about the refund yourself” ie their job. That’s what they call doing their job. I then received an email from their manager Annette Monforte who continued Victorian Legal Services Board and Commissioner’s lies about me and to me. I also received very inappropriate, very rude, and extremely dishonest communication from Danny Whelan.

I’m now receiving harassing emails from PCL lawyers so I have asked Victorian Legal Services Board to put a stop to it. Victorian Legal Services Board have completely ignored me for almost a year and today their director Danny Whelan told me to shut up. Apparently my money being stolen and the thief sending me harassing emails isn’t problem for these people.

Stay away from the Victorian Legal Services Board and Commissioner. Incredibly unprofessional

Carol Costa

1 review

9 months ago

Vic Legal Services are quite misleading and the legal advice they provide, are not by qualified lawyers. Their Resolution consultants do not have legal background, but copy and paste information which is available on the public Legal website. What a shame, such poor service at Tax payers cost.

Pete Mike

13 reviews

a year ago

Total Shonks, took 3 years to investigate my case, and was a blatant case of one of their lawyers misappropriating a lot of my money. They tried everything to squirm out of it, in the end they sided with the lawyer, despite him doing this multiple times, to other parties, and being charged over the same thing he did to me. Total shonks.10

Me 2

2 reviews

3 years ago

Legal Commission used incorrect address: both completely wrong email and wrong home address and for many letters/emails and over a couple of years. Whilst they apologized for making this error – the matter was a sensitive Supreme Crt matter, clearly very appalling administrative systems relating to database set up. Then to add insult to injury – in email, LSB were going to leave highly sensitive Supreme Crt files outside my apartment (common area – not private) and if I was not home to accept from courier. Also, Commissioner herself used incorrect address and on letter and which was sent to apologise and for using incorrect email address – both correspondence address were utterly incorrect: i.e. and belonged to someone else entirely: Privacy compromised? Commissions admin processes lacking integrity to say least. Be very careful. Pity they wouldn’t apologise for offering to leave my Supreme Crt files via courier and outside and so any one could pick up (but then thinking about it – the Courier would have probably just gone to the incorrect address anyway left files there) – but seemingly Commission is way too arrogant to take responsibility/accountability and behave decently and say sorry for this egregious bungle causing more stress and anxiety: careless!😢26

Chia Taing

Local Guide·49 reviews·265 photos

5 years ago

This year marked the annus horribilis for the institutions we must hold accountable. It seems The Royal Commission has missed one right here – the Legal Services Board. I believe it is unacceptable if we have to deal with artificial people hiding behind corporations, shirking responsibilities, causing more stress than they help to open up much needed conversations.

It’s time we looked beyond individuals, and at corporate responsibility, corporate design, corporate practices, policies and procedures that are inherently calculated and apt to mislead or indeed take advantage of vulnerable consumers.

My experience with the LSB lead me to conclude the questionable independence status of LSB in upholding its service charter (which there isn’t one on lsbc.vic.gov.au). And, that LSB looks after complaints of its paying registered lawyers at the expense of protecting public interest.

To Rosa Reynolds and Michael Mealy, I need you to be the light, instead of being a blight, to the people whose lives you are going to touch going forward.
37

rebecca leslie

5 reviews

3 years ago

Firstly tried to protect the practitioner who has previously been suspended for 8 years and had trust account fraud in the last 3 years, then recommended that I drop the complaint, when it became too obvious he was out of order, are now trying to raise red herrings to drag it out. It would be comical if it wasn’t serious. Time to go the way of APHRA and have non lawyers reviewing the crooks as they are clearly protecting their own. Complain and don’t accept excuses, delays or persistent demands for information. Watch when they dont respond for months but then expect a reply in 3 days. Keep demanding to escalate, copy in your local member and the attorney general.

Matthew Stan

8 reviews·4 photos

4 years ago

I contacted PCL lawyers about conveyancing work and after speaking to one of their lawyers (Brad Mayberry), made my deposit of a large sum of money then silence and weeks of it. All my calls, emails, texts, and messages via their 1300 completely ignored for weeks on end. I eventually did receive a phone call, however, he showed up completely unprepared plenty of um’s, ah’s, and flicking through the document. I then politely offered another week but unsurprisingly he made the decision to not bother showing up. I then received an invoice for a contract review which is a document that I have not received. To be clear the only document that I have received is an invoice for a document that I have not received. I have also contacted them countless times to close the account and have the remaining trust funds returned yet no action. We’ve now clocked 5 months of silence.

I then contacted the Victorian Legal Services Board and Commissioner (Rosa Reynolds). Not sure what they did but after 2 months from when the case was finally opened no action from PCL lawyers. What was Commissioner’s response they called me a liar, threw fake evidence in my face, treated me like an idiot, sent me in illogical circles, and then told me to “deal with the law practice about the refund yourself” ie their job.

That’s what they call doing their job. I then received an email from their manager Annette Monforte who continued Victorian Legal Services Board and Commissioner’s lies about me and to me. I also received very inappropriate, very rude, and extremely dishonest communication from Danny Whelan.

I’m now receiving harassing emails from PCL lawyers so I have asked Victorian Legal Services Board to put a stop to it. Victorian Legal Services Board have completely ignored me for almost a year and today their director Danny Whelan told me to shut up. Apparently my money being stolen and the thief sending me harassing emails isn’t problem for these people.

Stay away from the Victorian Legal Services Board and Commissioner. Incredibly unprofessional…
38

Michael Milsom

39 reviews

4 years ago

I found that they were very biased against you and in favour of any solicitor or barrister. They basically supported a barrister to take 2 k from me without any basis – ie the barrister wouldn’t explain anything about what the bill was for – right in front of them

Cam

Local Guide·21 reviews·1 photo

11 months ago

Completely incompetent staff who do not investigate lawyer fraud or misrepresentation. This department is totally incompetent and management needs to be fired!

Teem Verity

2 reviews

4 years ago

In addition to posted reviews here, refer google listings review under Legal Services Commissioner – ‘State government office in the City of Melbourne, Victoria’ and Legal Services Board – ‘Government office in the City of Melbourne, Victoria’ listing: balance of power b/n lawyers woes and the genuine woes of those that have been ripped off/deceived by, hoodwinked: ‘Fiona’ (LSC) you can not be everything to everybody, particularly when balance of power is tipped predominately in favour of the lawyers and whom are generally more educated, ‘CLEVER’ and far less vulnerable than their clients aka complainants: I suggest significant part of why the commission intrinsically exists, i.e. to protect those less fortunate and less able > funding monies should be directed to genuinely helping those ‘ripped off’ by the legal profession; not the other-way around: ‘Fiona’, who pays your salary> strongly suggest you re check your priorities and in the name of those (way) less fortunate or maybe you have become (way) too entrenched: failings only exacerbated by the Board’s/Commission’s lack of transparency and in some unfortunate instances, wayward ‘transparency’: LSBC toothless wonky tiger?? 🙀🐟

Corinne Pascal

Local Guide·457 reviews·2,150 photos

5 years ago

Such a lovely team of staff. I could not be more humbled the respect staff show to everyone is respectful. Fairness and integrity personified. #legalservicescommissioner

Angela Douvartzidis

5 reviews

3 years ago

These people bully you and try to intimidate people into going away rather than investigate misconduct by lawyers who won’t even hand over people’s files appalling behaviour

David Johnston

14 reviews

5 years ago

If you enter this office to complain about a lawyer take a witness and switch the tape recorder on for your own safety.

Jason Barker

2 reviews

a year ago

If you’ve ever wondered how your tax dollars are wasted, your search ends here.

Fairy Love Heart

9 reviews·4 photos

5 years ago

I had a very pleasant experience ,people were very helpful with my enquiries

Lisa Zarewicz

Local Guide·56 reviews·38 photos

8 months ago

Very helpful with my questions

Like

Greh Hind

22 reviews

4 years ago

Provided legal entity details

1

Loretta Peters

4 reviews

5 years ago

Rather impolite reception.

29

zoro zoro

2 reviews

7 years ago

very bad experience.

28

Geoff Cole

Local Guide·113 reviews·8 photos

4 years ago

Very helpful

Like

2. The 2013 Productivity Commissions Access to Justice Report

A greater focus on the consumer is needed …

In the past, there has been some criticism of complaints processes. In several jurisdictions there were concerns prior to complaint bodies gaining independence. For example, the previous legislative arrangements in Queensland:

… had come under intense and very public and adverse scrutiny in 2002 and 2003 [when professional associations handled complaints] … the process was insufficiently independent of the profession to give the community confidence that complaints about members of the profession would be dealt with thoroughly and impartially – the media characterised the process as ‘Caesar judging Caesar’. The publicity gave the impression not only that the profession ‘looked after its own’ as it were but that malpractice was commonplace. (Qld LSC 2005, p. 7)

This criticism led to the establishment of the Queensland Legal Services Commission. However, independence is not a ‘silver bullet’, and poor practices can still prevail within independent bodies. In 2008, the Victorian Ombudsman criticised the Victorian Legal Services Commission in an investigation of its complaints processes (McGarvie 2012). The Ombudsman initiated the investigation on its own motion because it had received 95 complaints about the Commission in the previous year (Victorian Ombudsman 2009).

The Ombudsman found poor practices including delay, poor handling of minor matters, poor investigatory techniques, denial of procedural fairness, inadequate documentation explaining decisions and a low number of substantive prosecutions. The Ombudsman made 28 recommendations to improve processes and the Commissioner has reported that these have since been adopted. One example was the introduction of a Rapid Resolution Team in 2010 to expeditiously handle straightforward service matters (McGarvie 2012). While the Commission sought access to this confidential Ombudsman report from the Legal Services Commission, it was instead only provided with the Legal Services Commission’s response to the recommendations. As such the Commission has not been able to independently verify whether the improvements have adequately addressed the underlying concerns raised by the Ombudsman.

In light of the fact that there have been attempts to address past criticisms, the Commission sought information in its draft report on whether legal complaint bodies are performing their role effectively at present. Responses suggested that there remains room for improvement, especially in relation to providing redress for consumers. Specific issues not only related to complaint bodies having limited powers, but also adopting an overly timid approach in discharging them. While the Commission has sought to address the former problem in its recommendations above, the latter is more difficult to remedy as it may require changes in regulatory culture.

Participants raised concerns about the visibility of complaint avenues. Some, such as the Medical Consumers Association (sub. DR177) and Insurance Council of Australia (sub. DR193), suggested that consumers are not aware of complaint bodies. While others said that, even where they are aware, they can be surprised by the limitations of the process, as explained by QPILCH:

Some of our clients are frustrated by the length of time taken to investigate a complaint and can be dissatisfied with the outcome of the process. In many cases, this arises from a lack of understanding of what the Legal Services Commission can and cannot do, with many clients wanting some form of monetary compensation.

Often clients seek additional advice about pursuing professional negligence claims against solicitors. (sub. DR247, p. 16)

A number of individuals that had made complaints about lawyers also argued that the process lacked transparency:

I was denied access to a copy of the staff report presented to the Board. Legal professional privilege was the reason given (staff of the Board are solicitors, so somehow the Board is deemed to be their client). I understand that the Board has defended this position in the Courts. Irrespective of the legal technicalities, it seems a clear denial of natural justice if complainants do not know what is being put before the Board, and therefore have no right of reply. (Peter Johnson, sub. DR187, p. 7)

You give us your complaint. We will stir it around in the black box and then, after a period of time, we will form the view that it is not a matter for further investigation and we will dismiss it under 4210(1)(f)(ii). (Andrew Watkins, trans., pp. 828–9)

While these comments often arose in relation to complaints that were dismissed or were unsuccessful, transparent communication with complainants in these circumstances is as important, if not more so, than where the complainant is successful.

Arguably the most troubling issue raised by participants was that complaint bodies only act on the most serious matters and provide little protection for consumers whose complaints are comparatively minor but have nonetheless caused harm. Consumer Action and CCLC submitted that:

… there are gaps in the protections available to consumers in their dealing with the legal profession compared to other service providers. (sub. DR202, pp. 10–11)

This view accords with current arrangements where legal complaint bodies have very limited powers in relation to consumer matters (the new arrangements in Victoria and NSW are yet to be tested). Moreover, consumer protection agencies such as the ACCC and fair trading offices play a very limited role in the legal services market because they tend to focus on systemic consumer problems rather than individual complaints. Complaints data provided to the Commission by several of these bodies indicates that, over recent years they have received very few complaints about lawyers (generally a few per month) and have usually referred these to the legal complaint body in their jurisdiction. This suggests there may be a gap in consumer protection, which is problematic since, when regulatory bodies are unable to assist, the consumer’s only alternative option for pursuing a dispute against a lawyer might be engaging another lawyer at their own expense.

The threshold for disciplinary action appears high when considered from a consumer protection perspective. For example, in all jurisdictions’ Legal Profession Acts, conduct such as breaching the act, charging excessive legal costs and being convicted of a ‘serious offence’ is only capable of constituting misconduct — meaning that it won’t necessarily amount to misconduct and therefore may not be pursued by the complaint body.

Similarly, in a recent speech the former Queensland Legal Services Commissioner outlined questionable billing practices, including providing examples from real complaints in relation to no win no fee agreements where the law firms (as standard practice):

• charged clients the maximum premium for accepting the risk of losing their claim, where there was no risk of losing at all

• charged clients the maximum premium for risk and mitigated the risk of losing by defining a ‘win’ in the solicitor-client contract as any circumstance in which the firm recommends accepting an offer to the client (2014).

The Commissioner went on to note:

… in our view the conduct of the lawyers in each of these scenarios once again exposes them not only to complaint and to having their costs reduced on assessment but potentially to disciplinary action for charging costs to which they are not entitled and/or for charging excessive legal costs.

The latter scenario in particular involves a host of nuanced and complex ethical questions arising not least from the fact that the firm has mitigated its risk by exaggerating the conflict of interest that is already inherent in the situation. Lawyers in this and like scenarios need to think very carefully about how they can best manage that conflict. (Briton 2014, p. 14)

Warne (2012) outlined how the high threshold for disciplinary action plays out in practice in relation to overcharging:

My survey of recent gross overcharging prosecutions suggests that disciplinary prosecutions tend to fail unless based on a fee of at least twice what the disciplinary tribunal decides to be the reasonable fee. Nothing less than ‘gross overcharging’, which is misconduct at common law, generally gives rise to disciplinary charges, even though the statutory definitions of ‘professional misconduct’ in the Legal Profession Acts specifically include plain old ‘charging of excessive legal costs’. (pp. 13–14)

For example, in Bar Association of NSW v Ward (2011) NSWADT 33 the tribunal dismissed an overcharging application, noting that the overcharge of 63 per cent was not ‘grossly excessive’ as it fell ‘significantly short of doubling’ the standard fee. Such a high bar can have a precedent effect on subsequent decisions of complaint bodies. Indeed, in most jurisdictions, complaint bodies are compelled by their Acts to have regard to the reasonable likelihood of the disciplinary tribunal finding either unsatisfactory professional conduct or professional misconduct when considering whether to dismiss a complaint.

Moreover, even where wrongdoing is serious, and even blatant, the process for achieving redress can be very protracted. Several participants raised the Keddies example, in which the practitioner was found to have grossly overcharged and misinformed over 100 clients but punitive action and compensation took several years. Eqalex Underwriting argued that:

The Keddies case demonstrates that in NSW as the most populous State, the complaints system is a ‘toothless tiger’ in respect of the powers available to the LSC against solicitors and the Bar Council against barristers. … it appears as the most glaring example in recent years of how even legal services regulators have been powerless to respond to serious complaints of over-charging and opacity of billing. … It also demonstrated how law firms can use technicalities to delay or evade disciplinary proceedings within the regulatory system. (sub. DR278, p. 5)

The NSW Administrative Decisions Tribunal made note of the delays in its decision:

Having regard to the fact that the matter was investigated at length by the LSC before Applications were lodged in the Tribunal, it is concerning that these matters have taken so long to reach a final hearing. … it can no longer be regarded as appropriate or in the public interest for even complex matters to take so long to be determined. In these cases the expert evidence was completed approximately 15 months after filing although the issues were well exposed through the investigation conducted by the LSC: yet, it took a further 18 months to reach a hearing. (Legal Services Commissioner v Keddie (2012) NSWADT 106)

The decision further noted that ‘excessive delays’ in the Tribunal’s Legal Services Division, though sometimes legitimate, were in part caused through ‘routine failure to abide by directions made by the Tribunal for prompt and effective disposition of matters’ by lawyers that are the subject of disciplinary proceedings:

It is rare for a Reply to be filed within the 21 days required by the Administrative Decisions Tribunal Act 1997 – this should not be an extended process having regard to the fact that there has usually been a substantial investigation prior to the commencement of proceedings in the Tribunal and the fact that practitioners are normally well aware of the issues and the defences to be relied upon. (Legal Services Commissioner v Keddie (2012) NSWADT 106)

This experience is not unique to New South Wales. Legal practice matters, when compared to other matter types, took the longest to resolve in the Queensland Civil and Administrative Tribunal and were by far the most costly (on average) in the Victorian Civil and Administrative Tribunal (chapter 10). This highlights that, even in escalated proceedings involving tribunals, it is difficult to effectively enforce orders against lawyers. In turn, this suggests poor outcomes — and prospects — for consumers.

That the conduct described above does not of itself constitute unprofessional conduct and lead to disciplinary action highlights that regulation of this market is insufficiently focused on the consumer and instead displays a technical and inward focus on the profession.

The objectives of complaint bodies need to be reoriented …

In light of the concerns outlined above, it appears that current regulatory arrangements fall short of the protection that consumers of legal services need. Warne noted that ‘retail’ consumers have been particularly let down:

It is this class of consumers of lawyers’ services in civil litigation – the ad hoc individual and small business non-institutional purchaser of litigation services, often in times of crisis or misfortune – which is at the forefront of my mind when I say overcharging is rife. (2012, p. 12)

One of the key reasons for such failure is the focus of the regulation of legal services on professional standards instead of effective service provision. Sir David Clementi highlighted the profession’s attitude in his review of legal service regulation in the United Kingdom:

… I have learnt that certain lawyers dislike being described as part of an industry. They see a conflict between lawyers as professionals and lawyers as business people. The idea that there is a major conflict is in my view misplaced. Access to justice requires not only that the legal advice given is sound, but also the presence of the business skills necessary to provide a cost-effective service in a consumer-friendly way. … Research shows that complaints arise as much from poor business service as from poor legal advice. If certain lawyers continue to reject the notion that they are in business, such complaints will continue until they are indeed out of business. (2004, pp. 5–6)

While poor business practices might drive providers out of other markets, limited competition in the legal services market means that poor behaviour can persist if it is not held in check by effective regulation. At present, while there are multiple bodies charged with professional regulation, the effectiveness of the regulatory system is stifled by a pronounced lack of consumer representation, as noted by the Centre for Innovative Justice:

… it is important to remember that, while professional associations act in the interests of their members, as well as in the interests of the rule of law; and while Legal Service Commissions act as independent bodies to investigate concerns about the legal market, there is no person or body directly charged with considering, or advocating for, the interests of legal consumers (2013, p. 15).

Indeed, the information imbalance faced by consumers is not corrected where complaint bodies act as independent arbiters of disputes. The purpose statements outlined in Legal Profession Acts tend to include providing a means of redress for complaints alongside the enforcement of professional standards. Given this dual objective, it is understandable that complaint bodies focus their limited resources on serious disciplinary matters. However, under present conditions, lawyers are able to maintain the advantage afforded by their knowledge and experience and outcomes may be more likely to fall in their favour.

The Commission considers that the stated purposes of complaint bodies need to be recast. Complaints bodies should have a primary objective — stipulated in their enabling legislation — of aiding consumers to achieve timely and effective redress. Importantly, this objective needs to be factored into their approach to dealing with complaints in practice.

… and other improvements can help operationalise this

A number of changes to the operation of complaint bodies may assist in embedding a more consumer-focused approach. In this regard Australian complaint bodies may usefully draw on some of the practices of the United Kingdom (UK) Legal Ombudsman.

First, Consumer Action and CCLC advocated improved transparency in relation to outcomes achieved for consumers:

Complaint handling bodies should also be required to report publicly on outcomes achieved. Currently, the Legal Services Commissioner releases statistics in its annual report about complaints received, but little is reported except whether the Commissioner was able to resolve the dispute or not. Public reporting on substantive outcomes achieved, not only through determinations, but through mediation and settlement agreements (at a macro level, not to identify parties), would improve accountability of the complaint handling bodies and help in determining effectiveness. (sub. DR202, pp. 13–14)

The registers of disciplinary action maintained by complaint bodies generally only publicise actions in relation to discipline of serious misconduct matters,

while only resolution rates are reported for other matters. Some complaint bodies, for example in New South Wales and Queensland, also publish the number of lower level disciplinary outcomes — including orders to apologise or pay compensation. In addition to reporting on outcomes, the UK Legal Ombudsman publishes results from surveys on consumer experience and satisfaction with the complaint process. While some complaint bodies in Australia collect this type of information periodically, it does not tend to be reported publicly. The publication of information on all types of disciplinary action, mediation outcomes and user satisfaction is useful as it provides a sense of the results achieved for consumers and more generally improves the transparency of complaints processes.

Second, there is limited involvement of lay members in legal complaint bodies. The Law Council of Australia identified lay representation in only two jurisdictions:

• In Tasmania, two of the six members on the Legal Profession Board must be lay persons without legal qualifications (as required in the Legal Profession Act 2007 (Tas)).

• In the Northern Territory, there is lay representation on the Law Society’s ethics committee which considers reports of investigators and makes recommendations to the Council (there are no lay members on the Council itself). (sub. DR309, p. 13)

There are no statutory requirements for lay representation in complaint bodies in other jurisdictions.25 While in some, such as Queensland and South Australia, tribunal panels include lay members, the majority of complaints do not escalate to tribunal proceedings, meaning that lay involvement on tribunals may be ‘too little, too late’. If lay representation were involved within the complaint bodies themselves, some cases may be more effectively dealt with earlier, and may avoid escalation to a tribunal in the first place. For example, lay involvement might result in better communication of decisions, improving the complainant’s understanding of the process, and making them less likely to appeal a decision.

However, some participants argued that lay representation was not appropriate for complaint bodies. The Law Council submitted that ‘the suggestion that there be lay representation on regulatory bodies is largely irrelevant’ in jurisdictions where they are statutorily independent (sub. DR309, p. 13). The Commission disagrees. Statutory independence and lay representation are not substitutes — with the former intended to avoid (the perception of) bias, and the latter intended to encourage a consumer focus by including a perspective from outside of the profession, ultimately making the system more approachable.

Further, the newly appointed SA Legal Profession Conduct Commissioner submitted that the profession could not be overseen by a lay person:

He or she wouldn’t have the experience to be able to assess what amounts to ‘the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner’ [statutory definition of unsatisfactory conduct], so as to be able to determine the most common types of alleged misconduct, which are mostly at that lower end of the misconduct scale. (sub. DR313, p. 4)

These views point to a significant incongruity given that ‘unprofessional conduct’ is defined by reference to the expectations of a member of the public. It is important that regulation is not solely informed by the profession’s view of itself.

Indeed, the value of lay representation was raised by consumers during consultation for the National Legal Profession Reform project:

Contributors believed that consumer representation on the NLSB [National Legal Services Board] would benefit the profession and provided examples of how consumer representation in the regulation of the electrical, banking, building, financial industry and medical sector had made the profession more aware of consumers and the wider community’s needs and perceptions. … there was strong overall support by consumers and consumer advocates for the membership of the Board to comprise half consumers (or lay consumer representatives). Consumers felt that having only one consumer on the Board would be tokenistic and unacceptable as it would result in a Board that was not independent of the profession. (2010, p. 8) The review would also provide an opportunity to revisit whether the regulation of legal services by both consumer authorities (such as fair trading offices) and legal complaint bodies is operating effectively.

RECOMMENDATION 6.8

State and Territory Governments should ensure greater consumer focus by legal complaint bodies. The legislated objectives of complaint bodies need to explicitly state that protecting consumers of legal services is their primary purpose. In order to support these objectives:

• complaint bodies should report publicly on outcomes achieved for consumers, including aggregated figures of all disciplinary actions.

• State and Territory Governments should amend enabling legislation to require the involvement of at least two lay representatives in complaint bodies

• there should be a national review of the effectiveness of these complaints regimes in three years, including their interaction with the Australian Consumer Law

61 The Law Institute of Victoria or other relevant body should make:

(a) uniform rules under the new uniform law that clarify the duties of

legal practitioners in providing executorial services and charging for

those services

(b) in support of these rules, guidelines for legal practitioner executors

on meeting their fiduciary responsibilities.

Note: The law Institute of Victoria has not written Guidelines for Lawyers who act as executors, they have however deemed that lawyers who act as executors are now deemed as lawyers. The colonial exploitive Judicial system were forced to hand over a crumb.

Legal practitioner executors

7.9 There are cogent reasons why legal practitioners are appointed as executors, and it is in the community’s interest that they continue to provide executorial services. Most legal practitioners act in the best interests of will-makers and beneficiaries. Their duty to act in their client’s interests is the cornerstone of the profession’s ethical standards and legal obligations.

7.10 It is therefore concerning that some legal practitioner executors have taken unfair advantage of their position by:

• charging the estate without the informed consent of the will-maker or beneficiaries

• claiming excessive amounts

• receiving both commission and professional fees for the same services.3

7.11 In this chapter, the Commission considers a number of measures to reduce the incidence of unethical and unlawful charging practices by legal practitioner executors. Its recommendations aim to improve compliance by legal practitioner executors with their ethical and legal obligations, and assist beneficiaries in understanding those  obligations and enforcing them when necessary. They also recognise that some of the problems identified are not confined to the legal profession and need broader solutions.

7.12 Decisions about whether specific rules for legal practitioners are necessary, and the form they should take if they are, need to be made in the context of the existing regulatory framework. The regulatory framework within which legal practitioner executors currently operate is described briefly in the next section. The discussion then turns to the rules that should apply

Regulation of the legal profession

Legal Profession Act

7.13 The legal profession in Victoria is regulated under the Legal Profession Act 2004 (Vic).

The Act establishes a co-regulatory framework, along the lines of a national model developed by the former Standing Committee of Attorneys General.5

7.14 The peak regulator is the Legal Services Board, which is an independent authority established by the Act. Among its functions is the responsibility to make and approve legal practice rules.6

7.15 With the board’s approval, the Law Institute of Victoria may make legal practice rules for legal practitioners other than barristers, and the Victorian Bar may make rules for barristers.7 The Law Institute of Victoria’s Professional Conduct and Practice Rules 2005 are applicable to legal practitioner executors and are discussed in more detail later in this chapter.

7.16 The chief executive officer of the Legal Services Board is the Legal Services Commissioner,

another statutory office created under the Legal Profession Act. The Legal Services Commissioner has an obligation to:

• ensure that complaints against legal practitioners are dealt with in a timely and effective manner

• educate the legal profession about issues of concern to the profession and consumers of legal services

• educate the community about legal issues and the rights and obligations that flow from the client-practitioner relationship.8

7.17 A number of the functions of the Legal Services Board and the Legal Services Commissioner have been delegated to the Law Institute of Victoria and the Victorian Bar.9

Complaints and discipline

7.18 A complaint to the Legal Services Commissioner may involve a civil complaint, a disciplinary complaint, or both.10

7.19 A civil complaint is a civil dispute, including a costs dispute, between a law practice or legal practitioner and a person about the provision of legal services. A beneficiary under a will can complain to the Legal Services Commissioner about legal fees charged to the estate, if the disputed amount is $25,000 or less and the complaint is made within the prescribed time limit.11 The definition does not extend to disputes about commission charged by a legal practitioner executor for executorial services, as these services are not considered to be legal services.

The Legal Services Commissioner must attempt to resolve civil disputes, taking any action necessary. This may include referring the matter for mediation and, in the case of a costs dispute, arranging for a non-binding assessment of legal costs.12 If the dispute is unable to be resolved, the Commissioner notifies the parties accordingly and informs them of their right to apply to the Victorian Civil and Administrative Tribunal (VCAT) for an arbitrated resolution. VCAT can make any of a range of orders set out in the Legal Profession Act, or any order it thinks fit, to finalise the dispute.13

7.21 A disciplinary complaint is a complaint about a legal practitioner’s conduct that, if established, would amount to either:

• unsatisfactory professional conduct,14 or

• professional misconduct.15

7.22 The Act sets out the conduct that does, or could, fall within each of these categories.

A contravention by a legal practitioner executor of the Professional Conduct and Practice

Rules may fall into either category.16

7.23 Anyone may make a disciplinary complaint, including a beneficiary under a will.17 The Legal Services Commissioner may also investigate the conduct of the legal practitioner in the absence of a disciplinary complaint, or if the complaint is withdrawn.18

7.24 If the investigation of the complaint shows that the legal practitioner would be likely to be found guilty of unsatisfactory professional conduct, the Legal Services Commissioner has a number of options available. These include:

• taking no further action

• cautioning the practitioner

• reprimanding or fining the practitioner

• requiring the practitioner to pay compensation, or

• seeking to prosecute the practitioner in VCAT.19

7.25 If it is likely that the legal practitioner would be found guilty of professional misconduct, the Legal Services Commissioner must seek to prosecute the practitioner in VCAT. If a legal practitioner is found guilty:

• they may be fined

• their ability to practise law may be amended, suspended or curtailed, or

• they may be subject to any other order that VCAT thinks fit.20

Proposed new uniform law

7.26 Victoria is developing a new regulatory scheme for the legal profession in conjunction with New South Wales, and the enabling legislation is expected to be introduced to Parliament during 2013. It is based on draft national legislation that was prepared in 2011 under the auspices of the Council of Australian Governments.21

7.27 Although only Victoria and New South Wales are proceeding with the reform at this time,

they have agreed to changes that are intended to reduce costs and make the scheme more attractive to smaller jurisdictions.22

7.28 The new scheme has many of the same features as the co-regulatory scheme established by the Legal Profession Act. The role of peak regulator will be assumed by a joint Legal Services Council, and a Commissioner for Uniform Legal Services Regulation will be established. Both entities will be created by Victorian legislation but located in New South Wales. Functions will also be conferred directly on the Victorian Legal Services Board and Legal Services Commissioner. 23

7.29 The new uniform law will be underpinned by uniform rules. The Law Council of Australia has issued a set of Australian Solicitors’ Conduct Rules 24 that were prepared with a view to the introduction of uniform rules across all jurisdictions. These rules are likely to be submitted to the new Legal Services Council for consideration and adoption.

7.30 The Australian Solicitors’ Conduct Rules are very similar to the Law Institute of Victoria’s Professional Conduct and Practice Rules. Significantly, the rule that applies to legal practitioners who draft wills that appoint them as executor, discussed later in this chapter, is almost identical.25

7.31 At the time of writing this report, the proposed new uniform legislation had not been introduced into Parliament but was well advanced. Recommendations to amend the Legal Profession Act would not be relevant, but the Commission has not seen the legislation that will underpin the new regulatory scheme. Therefore, when the Commission has identified shortcomings in the current scheme, it has directed its recommendations to ensuring that the problems will not persist under the new scheme.

Other legislation

7.32 Although the Legal Profession Act imposes obligations on legal practitioners when providing legal services, and avenues for resolving disputes and complaints, the Australian Consumer Law also applies to the legal services they provide.26 However, it is not clear that a beneficiary would have standing to make a complaint about legal costs charged to the estate, as the estate—not the beneficiaries—is liable to pay. In any event, it is likely that any conduct that contravenes the customer service guarantees under the Australian Consumer Law will be behaviour for which the legal practitioner can be disciplined under

the Legal Profession Act as well.27

7.33 Legal practitioner executors must also comply with the requirements that apply to all other executors. An executor who applies to the Supreme Court for a grant of probate must provide an affidavit containing detailed information about the will, the will-maker, the witnesses and the executors. The affidavit must also include an undertaking that, if probate is obtained, the executor will ‘well and truly collect and administer’ the estate ‘according to law’.2

Executors are assigned some specific responsibilities by legislation and various duties that arise from common law and equity and the powers of the Court. 29 The Supreme Court may remove an executor who is unfit to act in that office.30 It will order the removal of an executor if satisfied that is necessary for the due and proper administration of the estate and the advancement of the interests of the beneficiaries.31

Special rules for legal practitioner executors

Obtaining informed consent

The problem

7.35 In legal terms, the relationship between an executor and a beneficiary under the will is of a fiduciary nature. The executor—the fiduciary—has been entrusted by the will-maker to exercise powers and discretions that affect the interests of the beneficiary. The beneficiary is vulnerable to any abuse by the executor of the position. As a consequence, the executor has a duty to act in the beneficiary’s interests.

7.36 The connection between the relationship and the duty was explained by Justice Mason in Hospital Products International Pty Ltd v United States Surgical Corporation: It is partly because the fiduciary’s exercise of the power or discretion can adversely affect the interests of the person to whom the duty is owed and because the latter is at the mercy of the former that the fiduciary comes under a duty to exercise his

power or discretion in the interests of the person to whom it is owed.32

7.37 The extent of the duty depends on the circumstances but there is a general requirement that executors act free of charge. They have no automatic entitlement to be paid for meeting their responsibilities.

7.38 A legal practitioner who is asked to prepare a will that appoints them as executor must obtain the client’s informed consent before including any clause that authorises them, or their law firm, to charge the estate a fee or commission for their services.

7.39 If a legal practitioner is appointed executor under a will that does not contain a commission or charging clause, they can seek the informed consent of the beneficiaries. Alternatively, they can apply to the Supreme Court under section 65 of the Administration and Probate Act 1958 (Vic). The Court may allow commission as is ‘just and reasonable’ for the executor’s ‘pains and trouble’, though it may not exceed five per cent of the value of the estate.33

7.40 Legal practitioners’ duty to avoid conflicts of interest pervades all aspects of the legal services they provide and is emphasised in their professional rules of conduct.34 However, there is persistent concern that some legal practitioner executors are charging the estates they administer without consent or in circumstances where the person who gave the consent was not fully informed about the decision they were asked to make. This concern, and the Commission’s recommendations for reform, are discussed in the next two sections

4. Royal Commission into the Management of Police Informants   (LawyerX)

Reporting suspected misconduct When lawyers engage in professional misconduct, clients and the broader community rightly expect that this will be promptly and appropriately managed by regulators. Therefore, a respected, functional system to deal with complaints about lawyers is essential to protect consumers of legal services and maintain public confidence in the legal profession. Lawyers are often better placed than clients to recognise potential breaches of the professional conduct rules and ethical obligations, given their greater familiarity with them. The legal profession regulatory framework recognises this expertise through the existing mandatory requirement for a lawyer to report to a regulator if they believe ‘on reasonable grounds that there is an irregularity in connection with the receipt, recording or disbursement of any trust money received by a law practice’.264 Currently, a large proportion of disciplinary matters brought to the attention of regulators arise from complaints made by clients. As noted earlier in this chapter, in Ms Gobbo’s case, a client, Mr Carl Williams, complained to regulators about her conduct, with good reason as it turned out. Some lawyers told the Commission that they had observed Ms Gobbo’s unethical behaviour but did not make formal complaints, instead informally raising these concerns with Ms Gobbo, or in some cases, not raising them at all. Had they too complained to regulators, a more thorough investigation may have been undertaken and the unethical conduct exposed much earlier. If disciplinary and regulatory action had been taken earlier, Ms Gobbo could also have been removed from the Victorian Bar Roll. At the time of writing this final report, although Ms Gobbo had been struck off the Roll of Legal Practitioners by the Supreme Court, she remained on the Victorian Bar Roll’s list of retired counsel, due to the Victorian Bar Council’s inability to remove barristers from this list. In Chapter 7, the Commission recommends that this be addressed as a priority. Whether there should be a mandatory requirement to report suspected misconduct within the legal profession has been the subject of significant debate in Australia and in other jurisdictions. In Australia, it has been suggested that the legal profession regulatory framework focuses too much on self-reporting. Indeed, the collegial culture of the legal profession may well have been a factor in the reluctance of Ms Gobbo’s peers to report their concerns to the regulator. The Commission notes that other jurisdictions, such as the United States, the United Kingdom, New Zealand, Hong Kong and Canada, have taken steps to introduce mandatory reporting requirements. After examining the approach to mandatory reporting requirements adopted in comparative legal systems and analysing the strengths and weaknesses of the current regulatory framework, the Commission concludes that lawyers have an important role to play in reporting suspected misconduct of their peers. Some stakeholders raised concerns that the introduction of mandatory reporting was unnecessary, given that the legal profession and its regulators have a shared responsibility to uphold professional standards and the integrity of the legal profession. Stakeholders also suggested that mandatory reporting could: • lead to vexatious complaints • result in unintended consequences, such as negative repercussions or counter-complaints about the reporting lawyer • undermine the collegial nature of the legal profession. The Commission notes that any vexatious complaints made would constitute unsatisfactory professional conduct or professional misconduct. Similarly, any unjustified countercomplaints made about the reporting lawyer would exacerbate the seriousness of the original offending conduct and ultimate penalty. 105 LEGAL PROFESSION REGULATION Members of other professions, such as medical practitioners, are required to report suspected misconduct by their peers. There are of course differences between these two professions. While lawyers are not generally dealing with imminent risks to a person’s health or physical wellbeing, their misconduct can still have dreadful consequences, including loss of liberty, financial loss, substantial miscarriages of justice, mental anguish for clients and diminished public confidence in the justice system. It seems incongruous that medical practitioners, police officers and others are required to report the misconduct of their peers, while lawyers are not. The Commission notes that similar reporting requirements in the Australian health sector have not produced a large volume of vexatious complaints and as mentioned above, a 2017 University of Melbourne study found that less than 1 per cent of complaints were vexatious.265 Also, as noted earlier in this chapter, Victoria Police officers have, for many years, been subject to a mandatory reporting requirement. It is the Commission’s view that if a workforce such as law enforcement can operate effectively under mandatory reporting requirements, then members of the legal profession, who hold extremely high ethical responsibilities to their clients and the courts, should also have a positive obligation to report suspected misconduct. The Commission believes that the existing ethical duties and obligations of lawyers operate as a safeguard against actions such as lodging a vexatious complaint. This is particularly so if a complaint leads to the abuse of a court’s process, as this would be a serious breach of a lawyer’s ethical duties. The Commission appreciates stakeholders’ views that many details would need to be considered before introducing mandatory reporting. The Commission agrees that the threshold for mandatory reporting should be balanced appropriately—so that lawyers are required to report only significant suspected misconduct, not minor or trivial complaints. The Commission heard concerns that, given the importance of reputation in the legal profession, there is the potential for repercussions or adverse consequences for lawyers making a report. Stakeholders noted that there could be a chilling effect in relation to reporting due to the fear of repercussions. The Commission notes that if a lawyer subjected another lawyer to detrimental treatment because the second lawyer had complied with their professional obligations by reporting suspected misconduct, this would itself be a breach of those obligations. It agrees that the possibility of such detrimental treatment needs to be considered and sensitively managed; however, the primary concern must be protecting clients and the public and developing a culture where help with ethical matters is sought early. Introducing mandatory reporting may deter misconduct. It would certainly contribute to increasing and maintaining public confidence in the legal profession. The Commission believes that the trust placed in lawyers by their clients must be matched by lawyers’ accountability. The public should be able to expect that a lawyer who becomes aware of another lawyer’s misconduct will promptly report that behaviour to a regulator for consideration and action. Mandatory reporting would contribute to increasing and maintaining high ethical standards within the legal profession. It would help protect the public and the administration of justice; strengthen public confidence in the legal profession; and: • reinforce the accountability of every lawyer to the administration of justice and the public • reinforce the accountability of the legal profession collectively to uphold professional standards • support greater public confidence in the legal profession • address a current gap in the regulatory framework. 106 LEGAL PROFESSION REGULATION Any mandatory reporting requirement would need to specify: • an appropriate reporting threshold • any necessary protections for those making the complaint • how legal professional privilege and the duty of confidentiality affect lawyers’ provision of information to the regulator • the consequences for non-compliance with mandatory reporting. The VLSB+C, in its capacity as the main complaints-handling body in Victoria, is the appropriate body to hear complaints or reports of suspected misconduct. In making this recommendation, the Commission has also taken into account Victoria’s participation in the Uniform Law framework. The Commission is aware that the objectives of the Uniform Law are to achieve consistency in the regulation of the legal profession. Accordingly, the Commission recommends that the Victorian Government should firstly pursue the introduction of a mandatory reporting requirement through the framework for amendments provided by the Uniform Law, in consultation with the other participating jurisdictions. If such a requirement is not supported by the other jurisdictions participating in the Uniform Law, the Commission considers that the Victorian Government should implement a mandatory reporting requirement for lawyers in Victoria. To this end, the Commission notes that that the Uniform Law already contains matters specific to the operation of the law in Victoria. While this recommendation could give rise to the potential for inconsistency in the legal profession regulatory framework, on balance the Commission considers that the value of a mandatory reporting requirement in supporting both the Victorian public’s trust and confidence in the legal profession, and the ability of regulators to respond effectively to suspected misconduct, would outweigh any possible divergence from the Uniform Law. It would also address the existing apparent inconsistency whereby a solicitor must have ‘reasonable grounds’ to report suspected misconduct of another lawyer and the allegation must be made in good faith, which is not mirrored in the Barristers’ Conduct Rules.266 To support the introduction of a mandatory reporting requirement, the Commission also considers that the VLSB+C, the professional associations and other relevant stakeholders should develop guidance and CPD activities on how it can be applied, in particular: • the elements of the mandatory reporting requirement • when lawyers are likely to need to report suspected misconduct • the consequences of not reporting suspected misconduct; making vexatious counter-complaints; or subjecting a lawyer who reports suspected misconduct to detrimental treatment • the role of the VLSB+C in receiving the reports. 107 LEGAL PROFESSION REGULATION

RECOMMENDATION 86 That the Victorian Government, within 12 months, pursues through the Council of Attorneys-General and the Legal Services Council, an amendment to the Legal Profession Uniform Law introducing a mandatory requirement for lawyers to report the suspected misconduct of other lawyers. The Victorian Government should ensure the Victorian Legal Services Board and Commissioner is appropriately resourced to implement this recommendation. If the amendment incorporating a mandatory reporting obligation has not been agreed within 12 months, the Victorian Government should, within a further 12 months, introduce a mandatory reporting requirement for Victorian lawyers to report the suspected misconduct of other lawyers.

RECOMMENDATION 87 That the Victorian Legal Services Board and Commissioner, the Victorian Bar and the Law Institute of Victoria, in consultation with other relevant stakeholders and prior to the commencement of the mandatory reporting obligation proposed in Recommendation 86, prepare harmonised guidance and continuing professional development activities for the legal profession to accompany and support the introduction of a mandatory reporting requirement.

The severity of the fallout

The ramifications of the actions of Victoria Police and Ms Gobbo’s have been far-reaching – impacting on the integrity of the criminal justice system, as well as potentially affecting the trust and confidence clients have when consulting lawyers for legal advice and representation.

The Royal Commission into the Management of Police Informants handed down its final report recently, making several recommendations directed at members of the legal profession, with a view to restoring integrity and public trust.

Duty to report suspected corruption

Perhaps the most significant of these is the recommendation that governments create legislation to force lawyers to speak up if they suspect corruption by those in the criminal justice system, including their peers.

“When lawyers deliberately betray their client’s trust or act in ways contrary to a client’s interests, it can have a devastating impact on the client”, said Commissioner McMurdo.

“It is also, as this inquiry shows, apt to undermine integrity of the criminal justice system and a public confidence in the legal profession”.

Regulations within the profession already exist to protect both the consumer and public, as well as to support the proper administration of justice.

 It has been reported that the majority of lawyers support the Commissioner’s recommendation to implement mandatory reporting of misconduct, adhering to the philosophy that you must take proactive steps to protect the integrity of the profession, and the criminal justice system as a whole.

Restoring faith in the system

In proposing mandatory reporting, Ms McMurdo said she believed it would “deter misconduct by lawyers, encourage their adherence to high ethical standards, strengthen public confidence in the legal profession, and bring it into line with other professions and fields where mandatory obligations apply, including the health sector and policing.”

Ms McMurdo also recommended beefing up ethics education at both a university level and in the workplace with continuing professional development incorporating practice-based scenarios that would support lawyers to understand the types of ethical issues that can arise and how to manage them.

When it comes to complaints made about lawyers, Commissioner McMurdo suggested that the Victorian Legal Services Commissioner take sole responsibility for complaints, to ensure a “single, consistent, independent approach” to their management.

Commissioner McMurdo also suggested the legal profession regulators and professional associations work together to develop communications material for the public to increase education and awareness of lawyers’ professional and ethical obligations with the aim of restoring and maintaining confidence in the profession and justice system.

Mandatory reporting of misconduct for the legal profession

Exactly how these recommendations will be put into practice is yet to be determined.

Mandatory reporting is, in itself, a significant undertaking. Whistleblowers are rarely commended or celebrated. You only have to look at how rife sexual harassment is across all industries and professions, despite it being illegal – to realise that while mandatory reporting sounds great on paper, it is very difficult to put into practise effectively.

 In fact, as a further example of whether or not mandatory reporting can be truly effective in identifying delinquent behaviour, it’s worth noting that both the Victoria Police Act 2013  and the Victorian Public Administration Act 2004 require police and protective services officers to report misconduct by fellow officers.

However, as was discovered by the Royal Commission, the use of Ms Gobbo as an informant was well known by more than 100 people working in the Victorian Police force, including several at the highest levels of the organisation, and yet no one raised any issues or questioned the arrangement, at any time.

That said, The Victorian Bar Association, the Victorian Legal Services Board, and the Law Institute of Victoria are all keen to put the Lawyer X scandal behind the profession and move forward in a way which aims to restore faith in the criminal justice system and have each committed to working together, in order to implement the Royal Commission’s recommendations as soon as practicable.

In the interests of weeding out corruption wherever it occurs in society, it is therefore essential to ensure the independence and accountability of the judiciary.  If the judicial function becomes corrupted, to whom can the public turn for legitimate and effective redress?

Cabinet met on Monday night to decide the agency’s future, just days after former High Court judge Geoffrey Nettle called for his office to be disbanded – or else he would resign – owing to Director of Public Prosecutions Kerri Judd’s decision not to prosecute criminal cases against police officers.

Both the special investigator and Royal Commission Implementation Monitor, Sir David Carruthers, have recommended the winding up of the Office of the Special Investigator (OSI) – and we have accepted their advice,” she said.

Recommendations

RECOMMENDATION 86

That the Victorian Government, within 12 months, pursues through the Council of Attorneys-General and the Legal Services Council, an amendment to the Legal Profession Uniform Law introducing a mandatory requirement for lawyers to report the suspected misconduct of other lawyers. The Victorian Government should ensure the Victorian Legal Services Board and Commissioner is appropriately resourced to implement this recommendation.

If the amendment incorporating a mandatory reporting obligation has not been agreed within 12 months, the Victorian Government should, within a further 12 months, introduce a mandatory reporting requirement for Victorian lawyers to report the suspected misconduct of other lawyers.

RECOMMENDATION 87

That the Victorian Legal Services Board and Commissioner, the Victorian Bar and the Law Institute of Victoria, in consultation with other relevant stakeholders and prior to the commencement of the mandatory reporting obligation proposed in Recommendation 86, prepare harmonised guidance and continuing professional development activities for the legal profession to accompany and support the introduction of a mandatory reporting requirement.

RECOMMENDATION 88

That the Victorian Legal Services Commissioner, within 12 months, revokes the Instrument of Delegation conferred on the Victorian Bar for receiving and handling complaints regarding barristers and resumes that function.

RECOMMENDATION 89

That the Victorian Bar and the Law Institute of Victoria, within six months, assess the awareness level, use and views of the ethical, health and wellbeing support services and resources offered to their members. If the awareness levels and usage are found to be low, the Victorian Bar and the Law Institute of Victoria should review the quality of the services and resources and improve marketing and communications to ensure members are aware of the useful supports available.

The Victorian Bar and the Law Institute of Victoria should regularly review the effectiveness of these services and resources (at least every two years) and update them as required to meet the needs of members.

Yoorrook for Justice Report.

Strengthening human rights and cultural rights compliance 6. Drawing on (but not confined to) the recommendations of the 2015 Review of the Charter and its response to that review, the Victorian Government, following a public consultation process that includes the First Peoples’ Assembly of Victoria and other First Peoples organisations, must clarify and strengthen the Charter so that it more effectively: a) requires public authorities to act in a way that is and make decisions that are substantively compatible with human rights including Aboriginal cultural rights, and b) ensures that public authorities are held accountable for acting or making decisions incompatibly with human rights including Aboriginal cultural rights, including by: i. enabling individuals to bring a legal proceeding in the Victorian Civil and Administrative Tribunal for a remedy (including compensation) against public authorities who have made decisions or acted incompatibly with human rights including Aboriginal cultural rights under the Charter, and ii. enabling individuals to rely upon the human rights including Aboriginal cultural rights in the Charter in any legal proceedings, as provided (for example) in section 40C of the Human Rights Act 2004 (ACT).

The current legal system, including the crim­inal legal system, is grounded in violence, racism, the lie of terra nullius and denial of justice and Aboriginal self-determination. It is a system that was designed to destroy the oldest continuous culture on earth, and which has not finished pursuing this goal. We continue to see the legacies of historical injustices in the way that our clients are criminalised marginalised, incarcerated and re-traumatised. Until this structural violence is acknowledged and addressed, the legal system will continue to discriminate against Aboriginal Communities and perpetuate the violence that has been perpetrated for the last 230 years.8

The relationships between criminal legal institutions and First Peoples in Victoria have continuously formed within the colonial structure — both as a political process and a mentality.9 As will be detailed in later chapters, Yoorrook heard of racism and power imbal­ances influencing the services provided by govern­ment agencies, ongoing child removal and family policing, barriers to navigating the courts and legal system, and the cycle of children in the child protection system entering the criminal justice system.

Yoorrook heard that, in the administration of the child protection system for example, cultural differences are judged through a Western moral lens, leading to actions that are racially discriminatory and violate human and cultural rights. Yoorrook heard of a sys­temic culture where First Peoples experiencing the ongoing impacts of colonisation and intergenerational trauma are punished rather than supported. This evidence sits firmly within a continuity of systemic injustice since European invasion. Governed by successive legislation, policy and racist practice, the human and cultural rights violations of the past remain alive in the present

Settler colonialism and the logic of elimination

The present-day criminal justice and child protection systems are deeply rooted in the colonial foundations of the State of Victoria. Australia is a settler colony, meaning the colonisers ‘come to stay’.10 This form of colonisation differs from forms of colonisation that have operated in other parts of the globe, such as parts of Africa, where resources are extracted for the benefit of the colonising nation.11

The primary purpose of settler colonialism is to pos­sess land, which is considered a resource. Colonisers, therefore, are dependent on acquiring territory. This is crucial to the ‘success’ of the colony, the wealth of the colonisers, and is necessary to sustain life.12 Because First Peoples’ ownership and presence is ‘in the way’ of the colonisers’ settlement and occupation, non-Indigenous historian Patrick Wolfe describes the settler-colonial project as operating under a ‘logic of elimination’.13 The colony ‘destroys to replace’, targeting not only First Peoples’ lives (for example through frontier violence), but their societies, fami­lies, cultures, identity, and connections, access and claims to land.14

During the present-day State of Victoria’s frontier period, it was the colonisers (actively enabled or not prevented by colonial authorities) who did the work of elimination and erasure, both independently and together in groups. Over time, the violence of the frontier transitioned to the violence of the State, via legislation, policies, and institutions, among other measures. Race is at the centre of this process. In Victoria’s history, race has been used and constructed by the State to facilitate and justify its dehumanisation of, and violence toward, First Peoples.

Since colonisation, the State has sought to control the lives of Victoria’s First Peoples — forcing clans off their respective countries, detaining people on missions and reserves, and in children’s institutions and prisons, separating families and controlling repro­duction via restrictions on marriages. First Peoples have been criminalised and imprisoned for resisting State intervention, for maintaining their sovereign rights to country and culture and not complying with imposed Western laws. These actions and policies involved gross violations of human and cultural rights and were based on complete rejection of the equal dignity and humanity of First Peoples. Commen­tators have described the way Victoria’s project of settler-colonialism in its many forms contravenes the United Nations Genocide Convention.15 As the Lowitja Institute stated in evidence to Yoorrook:

The current legal system, including the crim­inal legal system, is grounded in violence, racism, the lie of terra nullius and denial of justice and Aboriginal self-determination. It is a system that was designed to destroy the oldest continuous culture on earth, and which has not finished pursuing this goal. We continue to see the legacies of historical injustices in the way that our clients are criminalised, marginalised, incarcerated and re-traumatised. Until this structural violence is acknowledged and addressed, the legal

Yoorrook’s recommendations for change

Yoorrook makes 46 recommendations across five categories:

  • transformative change to the child protection and the criminal justice systems through the treaty process (recommendations 1 to 2)
  • urgent actions across both the child protection and criminal justice systems relating to accountability, cultural competency and responsiveness, and strengthening compliance with human and cultural rights obligations (recommendations 3 to 6)
  • urgent reforms to the child protection system (recommendations 7 to 26)
  • urgent reforms to the criminal justice system (recommendations 27 to 44)
  • legislative reforms required to enable Yoorrook to fulfill its mandate for truth telling (recommendations 45 to 46).

Yoorrook expects that the Victorian Government immediately commence work to implement the urgent recommendations made in this report so that they can be achieved over the next 12 months. Yoorrook recognises that work to fulfil these urgent recom­mendations may be supplemented by consultations within the treaty process due to commence before the end of 2023. This must not be used as an excuse for delay given the evidence Yoorrook has presented. Yoorrook also notes that the treaty framework allows the negotiation of interim agreements.

Where Yoorrook makes recommendations that require oversight agencies and Aboriginal organisations to assume additional responsibilities or functions, it is essential that the government provide adequate resources to those organisations. Similarly, where Yoorrook makes recommendations that require or improve compliance with laws, policies and cultural and huma and First Peoples in Victoria have continuously formed within the colonial structure — both as a political process and a mentality.9 As will be detailed in later chapters, Yoorrook heard of racism and power imbal­ances influencing the services provided by govern­ment agencies, ongoing child removal and family policing, barriers to navigating the courts and legal system, and the cycle of children in the child protection system entering the criminal justice system.and Families Act 2005 (Vic) and to improve bail, sentencing and other criminal justice laws. It is normal practice that government considers full implications of any legisla­tive change, however in doing so this must not be an excuse for delay or deferral. First Peoples cannot wait for these injustices to be addressed and nor should other Victorians be denied the positive changes that will flow from them.

Recommendations

Transformative change through the Treaty process

  • The Victorian Government must: transfer decision-making power, authority, control and resources to First Peoples, giving full effect to self-determination in the Victorian child protection system. Transferring or creating decision-making power includes but is not limited to: i. system design
    • ii. obtaining and allocating resourcesiii. powers of, and appointments to bodies or institutions, andiv. accountability and oversight functions including new First Peoples led bodies, oversight processes or complaints pathways negotiate this through the Treaty process including through potential interim agreements in doing so, go beyond the transfer of existing powers and functions under the Children, Youth and Families Act 2005 (Vic), which will require new, dedicated legislation, developed by First Peoples, for the safety, wellbeing and protection of First Peoples children and young people, and recognising the urgent need for immediate reform and without delay, take all necessary steps to begin and diligently progress the establishment of a dedicated child protection system for First Peoples children and young people supported by stand-alone legislation based on the right of First Peoples to self-determination and underpinned by human and cultural rights to be developed by the First Peoples’ Assembly of Victoria which must be sufficiently resourced by government for this purpose.The Victorian Government must give full effect to the right of First Peoples to self-determination in the Victorian criminal justice system as it relates to First Peoples.
    • This includes negotiating through the Treaty process, including through potential interim agreements,
    • the transfer of decision-making power, authority, control and resources in that system to First Peoples.
    • Transferring or creating decision-making power includes but is not limited to :system design obtaining and allocating resources powers of, and appointments to bodies or institutions, and accountability and oversight functions including new First Peoples led oversight processes or complaints pathways.
  • Urgent reforms: accountability, cultural competence and compliance with human and cultural rights
  • Open monitoring and evaluation underpinning accountability
  • . To ensure State accountability for First Peoples related programs and policies by those responsible for their development and delivery: government bodies must ensure that First Peoples related programs and policies are rigorously monitored and evaluated
  • . monitoring and evaluation must be designed alongside the development of the program or policy so that it is built into the program or policy (and commences at the same time as implementation) with measurement focused on real outcomes
  • . where programs or policies have existing commitments to monitoring and evaluation, but little or no progress has been made, these must be actioned within six months
  • . where programs or policies do not have monitoring or evaluation included, the inclusion of these must be actioned urgently, and
  • . these monitoring and evaluation processes must be in accordance with the Burra Lotjpa Dunguludja (AJA4) Monitoring and Evaluation Framework including: i. being consistent with First Peoples values
  • . ii. reflecting First Peoples priorities for what is measured and how it is measured
  • . iii. having an approved regular reporting cycle, and
  • . iv. having a commitment to the open reporting of results..
  • to ensure that they have that capability, competence and support necessary for them to carry out their obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) and other human and cultural rights laws, and in particular for this purpose the government must review and revise all relevant policies, procedures, protocols, administrative directions, guidelines and like documents
  • . review all relevant training courses and programs, and
  • . ensure that Victorian First Peoples businesses or consultants participate on a paid basis in the review and revision of training courses and programs, and the delivery of these, wherever possible.
  • Strengthening human rights and cultural rights compliance
  • . Drawing on (but not confined to) the recommendations of the 2015 Review of the Charter and its response to that review, the Victorian Government, following a public consultation process that includes the First Peoples’ Assembly of Victoria and other First Peoples organisations, must clarify and strengthen the Charter so that it more effectively: requires public authorities to act in a way that is and make decisions that are substantively compatible with human rights including Aboriginal cultural rights, and
  • . ensures that public authorities are held accountable for acting or making decisions incompatibly with human rights including Aboriginal cultural rights, including by: i. enabling individuals to bring a legal proceeding in the Victorian Civil and Admin¬istrative Tribunal for a remedy (including compensation) against public authori¬ties who have made decisions or acted incompatibly with human rights including Aboriginal cultural rights under the Charter, and
  • . ii. enabling individuals to rely upon the human rights including Aboriginal cultural rights in the Charter in any legal proceedings, as provided (for example) in section 40C of the Human Rights Act 2004 (ACT)..
  • Urgent reforms: child protection system

Oversight

  • The Victorian Government must amend the Commission for Children and Young People Act 2012 (Vic) to: specifically establish the role of the Commissioner for Aboriginal Children and Young People in the same way that the Principal Commissioner for Children and Young People’s role is provided for in the legislation
    • provide the Commissioner for Aboriginal Children and Young People with the same statutory functions and powers as the Principal Commissioner insofar as these powers relate to Aboriginal children and young people in Victoria
    • expressly provide the Commissioner for Aboriginal Children and Young People the function to receive and determine individual complaints from or relating to First Peoples children and young people concerning their treatment in child protection, including out of home care, and
    • give the Commissioner for Aboriginal Children and Young People and the Principal Commissioner rights of intervention in legal proceedings relating to a child or young person’s rights under the Charter to be exercised at their discretion.

These roles and powers must be appropriately resourced.

Early help, prevention and intervention

  • The Victorian Government must: work with Aboriginal organisations to develop a consistent definition of early help, early intervention and prevention that aligns with the perspectives of First Peoples. This definition should be adopted across the Victorian Government
    • enshrine prevention and early help/intervention as a guiding principle in the Children, Youth and Families Act 2005 (Vic) and take all necessary steps to implement this principle in the administration of the Actas an immediate action, substantially increase investment in Aboriginal Community Controlled Organisation prevention and early help/intervention services to keep First Peoples children out of the child protection system and to prevent their involvement from escalating when it does occur, andreview the governance model for implementing target 12 of the Closing the Gap Agreement, with a view to broadening the responsibility to achieve this target beyond the Department of Families, Fairness and Housing. The Victorian Government must publicly report annually on the amount and proportion: of total child protection and family services funding allocated to early intervention (family and parenting services) compared to secondary and tertiary services (community delivered child protection services, care services, transition from care services and other activities), andof funding allocated to Aboriginal Community Controlled Organisations compared to mainstream services for early intervention (family and parenting services), secondary and tertiary services. The Victorian Government must immediately give a direction to health services (including perinatal, maternal and child health services) that: clinical and allied health staff working with pregnant women must undertake appropriate training to address bias and build expertise in working safely and effectively with First Peoples women and families to address their social and emotional needs, andthis training must be designed and delivered by a Victorian First Peoples business or consultants on a paid basis, and completion rates of this training must be publicly reported. The Department of Families, Fairness and Housing must ensure that: when a child protection worker is considering making a pre-birth report, that prior to birth, and with the consent of the pregnant Aboriginal women, organisations (including Aboriginal Community Controlled Organisations or Aboriginal Community Controlled Health Organisations) are informed of the rationale for and intention to make a pre-birth report so that they can: i. provide input into that decisionii. ensure people with appropriate training and expertise are involved, andiii. offer culturally safe supports to the mother, father and/or significant others in the family network when DFFH receives a pre-birth report from any source, that pregnant Aboriginal women are informed of the report by a person(s) with the appropriate expertise to hold such a sensitive discussion and who has the skills to respond appropriately and offer a range of culturally safe support options, including a referral to a supporting organisation (including an Aboriginal Community Controlled Organisation or Aboriginal Community Controlled Health Organisation), and
    • pre-birth reports that are assessed as not requiring further action are to be excluded from this scheme

Child removal

  • Whenever: the Department of Families, Fairness and Housing receives a pre-birth report regarding a pregnant Aboriginal woman, or
    • a child protection report is substantiated regarding an Aboriginal child,
  • Then: subject to the consent of the person to whom the report relates, the Department must automatically notify a Victorian Aboriginal legal service provider to be funded by the Victorian Government so that the child’s parents and/or primary care giver are offered legal help and, where appropriate non-legal advocacy.
  • The Victorian Government must ensure that an impact evaluation of the Child Protection Risk Assessment Framework (SAFER) is commenced within 12 months, and in the case of First Peoples children: is First Peoples led and overseen by a First Peoples governance group
    • has methodology that includes a review of individual cases by the Commissioner for Aboriginal Children and Young People, and makes recommendations that include actions to reduce child protection practitioner racial bias when applying the Framework. The Department of Families, Fairness and Housing must ensure that: all incoming child protection staff, as part of their pre-service education, complete cultural awareness and human and cultural rights training covering issues including: i. the history of colonisation and in particular the impact of ‘protection’ and assim­ilation policiesii. the continuing systemic racism and paternalism inherent in child protection work today that must be identified, acknowledged and resistediii. the value of First Peoples family and child rearing practiceiv. upholding human rights including Aboriginal cultural rights, andv. the strength of First Peoples families and culture and culturally appropriate practices all child protection staff and Department executives undertake regular, mandatory cultural safety training, to be designed and delivered by a Victorian First Peoples business or consultants on a paid basis, and
    • completion rates for training are published by the Department annually.
  •  
    • In relation to determining the identity of First Peoples children: the Department of Families, Fairness and Housing, in consultation with the Commissioner for Aboriginal Children and Young People and relevant Aboriginal Community Controlled Organisations, must improve how they identify and deidentify First Peoples children in the Victorian children protection system, andthe Commissioner for Aboriginal Children and Young people must undertake regular audits and publish the results to ensure child protection practitioners are correctly identifying and deidentifying First Peoples children and doing so in a timely way. The Department of Families, Fairness and Housing must urgently take steps to ensure full compliance with its obligations to: convene an Aboriginal Family Led Decision Making meeting before making any significant decision about an Aboriginal child, and record the outcome, andconsult with the Aboriginal Child Specialist Advice and Support Service on all significant decisions affecting an Aboriginal child and record the outcome. The Victorian Government must amend the Children, Youth and Families Act 2005 (Vic) to: specify that priority be given to keeping siblings together in placement decisions (both in out of home care and permanent placements)include in the decision-making principles a presumption that removal of a First Peoples child from their family or community causes harmprovide that a child protection practitioner must record how they have considered the presumption of harm caused by removal in their decision to remove a First Peoples child, and provide that the Children’s Court is required to include in its reasons for a removal decision how the presumption of harm caused by removal has been considered.

These amendments must be made urgently while a new First Peoples led child protec­tion system and accompanying Act is designed and implemented in accordance with recommendation 1.

  • The Victorian Government must: ensure Children’s Court of Victoria judicial officers determine child protection matters state-wide, and
    • abolish the current practice of having non-specialist magistrates determining child protection matters in some rural and regional court locations. 
    • The Victorian Government must as soon as possible expand and sufficiently resource the Marram-Ngala Ganbu (Koori Family Hearing Day) state-wide.

Out of home care

  • The Victorian Government must address barriers to First Peoples becoming carers for First Peoples children in the child protection system by: simplifying application and vetting processes and improving support for people navigating the process
    • ending the substantive inequality between kinship carers and foster carers by removing the automatic commencement of kinship payments at level one such that payments are made at a rate that reflects the complexity of kinship care, andensuring kinship carers have appropriate access to training, support, and services at a level that is at least equivalent to the training, support and services offered to foster carers. The Victorian Government must amend the Children, Youth and Families Act 2005 (Vic) to require the Department of Families, Fairness and Housing to ensure that all children who are placed in out of home care receive a developmental disability assessment and health assessment consistent with the National Out of Home Care Standards and in a timely way.The Victorian Government must amend the Children, Youth and Families Act 2005 (Vic) to provide the Children’s Court with greater powers to ensure that cultural plans are developed, implemented and monitored, particularly when out of home care orders are being extended and children’s separation from their families is prolonged.The Victorian Government must urgently: ensure that the Framework to Reduce Criminalisation of Young People in Residential Care is applied in all casesestablish a mechanism within the Commission for Children and Young People through which young people can report that a residential care provider or Victoria Police has failed to apply the Framework, so that the Commissioner can advocate for that young person, including (in the case of police) by referring the matter to an independent police oversight bodyensure that, when the Commissioner for Aboriginal Children and Young People is placed on a statutory footing, these functions are performed by that Commissioner with respect to those children and young people, and
    • fund the development and delivery of training to residential care providers and Victoria Police on implementing the Framework in practice.
  • The Commission for Children and Young People and Commissioner for Aboriginal Children and Young People must: monitor compliance with the Framework to Reduce Criminalisation of young people in residential care current 18-month action plan
    • review individual casesspecify targets for reduced police contact, andpublicly report on outcomes. 

Permanency and reunification

  1. The Victorian Government must amend the Children, Youth and Families Act 2005 (Vic) to allow the Children’s Court of Victoria to extend the timeframe of a Family Reunification Order where it is in the child’s best interest to do so.
    1. The Victorian Government must: recognise that the human and cultural rights of First Peoples children in permanent care to have, express, develop and maintain their culture, and to maintain contact with their Aboriginal family, kin and community, are not presently adequately respected and ensured in practice, and
    1. urgently work with the First Peoples’ Assembly of Victoria and relevant Aboriginal organisations to formulate and implement all necessary legislative, administrative and other means for respecting and ensuring those rights, including by authorising Aboriginal Community Controlled Organisations to monitor the cultural care plans of Aboriginal children who are the subject of permanent care orders.
    1. Urgent reforms: criminal justice system

Police

  • The Victorian Government must establish and adequately resource a new independent police oversight authority, headed by a statutory officer who has not been a police officer, to: investigate and determine all complaints about police (except for minor customer service matters)
    • investigate and report on all police contact deaths and serious incidentsconduct independent monitoring of and reporting on police custody and detentionon its own motion, monitor, audit, systemically review and report on the exercise of police powers and interactions with the public including customer service matters undertake own motion, public interest investigations, and publish reports in the public interest. 

The new authority must:

  • have powers to arrest, search property and compel the production of information including from Victoria Police, and
  • include a dedicated division for complaints from First Peoples that is under First Peoples leadership.
  • Access to pre-charge cautions in the adult criminal legal system in appropriate cases should be increased by all necessary legislative, administrative and others means including by: legislating a positive duty upon Victoria Police to: i. take into account an Aboriginal person’s unique background and systemic factors when making decisions on cautioning or diversion
    • ii. demonstrate the steps taken to discharge this obligation, andiii. record reasons for their decisions introducing a legislative presumption in favour of alternative pre-charge measures in appropriate cases (for example, verbal warnings, written warnings, cautions and referrals to cautioning programs), andVictoria Police publishing cautioning data its Annual Report, including specific data comparing cautioning rates for Aboriginal and non-Aboriginal people. The Equal Opportunity Act 2010 (Vic) must urgently be amended to prohibit race and other forms of discrimination in the administration of State laws and programs, including all functions performed by Victoria Police, Corrections Victoria and child protection authorities.In relation to the decriminalisation of public intoxication: the Chief Commissioner of Police must ensure that Victoria Police conduct is closely monitored to ensure police members do not use existing powers to unnecessarily take intoxicated people into custody, for example by ‘up-charging’, andthe Victorian Government’s planned independent evaluation of the monitoring of police conduct must: i. be First Peoples led, with appropriate governance by themii. cover at least the first 12 months and then three years of implementation, and
    • iii. have results that are made public.
  • The following mandatory criteria must be introduced for the selection and appointment of the Chief Commissioner of Police and when undertaking annual executive performance reviews of the Commissioner: knowledge, experience, skills and commitment to changing the mindset and culture of Victoria Police, to end systemic racism and to ensure the human rights of First Peoples are respected, protected and promoted in all aspects of police operations
    • understanding of the history of colonisation and in particular the role of Victoria Police in the dispossession, murder and assimilation of First Peoples, and the ongoing, intergenerational trauma and distrust of police this has causedrecognition of ongoing systemic racism within Victoria Police and the need for this to be identified, acknowledged and resisted, andexperience, skills in, and commitment to, changing the culture of Victoria Police to end systemic racism and to ensure the human rights of First Peoples are respected, protected and promoted in all aspects of police operations and the organisation. 

Bail

  • The Bail Act 1977 (Vic) must immediately be amended to: create a presumption in favour of bail for all offences with the exception of murder, terrorism and like offences
    • place the onus on the prosecution to prove that bail should not be granted due to a specific, serious or immediate risk to the safety of a person or to the administration of justice, with the exception of murder, terrorism and like offencesprohibit remand if a sentence of imprisonment is unlikely if there is a finding of guilt (unless it is necessary to protect the safety of a person or the proper administration of justice pending hearing)repeal the bail offences contained in current sections 30, 30A and 30Brequire all bail decision-makers to explain what information they have considered to understand how a person’s Aboriginality is relevant, and provide the reasons for any refusal to grant an application for bail made by an Aboriginal person, and require the Victorian Government and Victoria Police to publicly report, at least annually, bail and remand rates for Aboriginal people, and summary data of the reasons given by bail decision-makers for refusing bail. 
    • The Victorian Government must: develop, deliver and publicly report on a cultural change action plan to ensure all bail decision-makers exercise their powers and functions on the basis that imprisonment on remand (including that of First Peoples) is used only as a last resort, and ensure that the development and ongoing monitoring of performance of the action plan is First Peoples led.
  1. The Victorian Government must ensure access to culturally safe and appropriate bail hearings for Aboriginal people, and culturally safe support for First Peoples on bail.

Youth justice

  1. The Victorian Government must urgently introduce legislation to raise the minimum age of criminal responsibility in Victoria to 14 years without exceptions and to prohibit the detention of children under 16 years.
    1. The Victorian Government’s planned new Youth Justice Act must: explicitly recognise the paramountcy of human rights, including the distinct cultural rights of First Peoples, in all aspects of the youth justice systemembed these rights in the machinery of the Act, and require all those involved in the administration of the Act to ensure those rights. 
  2. Courts, sentencing and classification of offences
  • The Victorian Government must: amend the Sentencing Act 1991 (Vic) to include a statement of recognition acknowledging: i. the right of First Peoples to self-determination
    • ii. that First Peoples have been disproportionately affected by the criminal justice system in a way that has contributed to criminalisation, disconnection, intergen­erational trauma and entrenched social disadvantageiii. the key role played by the criminal justice system in the dispossession and assimilation of First Peoplesiv. the survival, resilience and success of First Peoples in the face of the devastat­ing impacts of colonisation, dispossession and assimilationist policies, andv. that ongoing structural inequality and systemic racism within the criminal justice system continues to cause harm to First Peoples, and is expressed through decision-making in the criminal justice system and the over-representation of First Peoples in that system amend the Sentencing Act to require courts to, in appropriate cases, consider alternatives to imprisonment for all offenders, with particular attention to the circumstances of Aboriginal offendersamend the Sentencing Act to, in relation to sentencing: i. require courts to take into account the unique systemic and background factors affecting First Peoples, andii. require the use of Gladue-style reports for this purpose, andensure that: i. there is comprehensive cultural awareness training of lawyers and the judiciary to support the implementation of these requirements, andii. the design and delivery of such training must be First Peoples led and include education about the systemic factors contributing to First Peoples over-imprisonment. 38. The Victorian Government must amend the Criminal Procedure Act 2009 (Vic) and the Children, Youth and Families Act 2005 (Vic) to remove the requirement that the prosecution (including police) consent to diversion and replace it with a requirement that the prosecution be consulted.39. The Victorian Government must: where appropriate decriminalise offences linked with disadvantage arising from poverty, homelessness, disability, mental ill-health and other forms of social exclusion, and review and then reform legislation as necessary to reclassify certain indictable offences (such as those kinds of offences) as summary offences, and for this purpose, by 29 February 2024, refer these matters to the Victorian Law Reform Commission (or similar independent review body) for urgent examination which includes consultation with the First Peoples’ Assembly of Victoria and relevant Aboriginal organisations. 

The Victorian Government must promptly act on the review’s recommendations.

Prisons

  • The Victorian Government must: amend relevant legislation to expressly prohibit routine strip searching at all Victorian prisons and youth justice centres, and
    • ensure that data on the use of strip searching is made publicly available and used to monitor compliance with the prohibition on routine use. Noting that cooperation with the Australian Government is required, the Victorian Government must immediately take all necessary legislative, administrative or other steps to designate an independent body or bodies to perform the functions of the National Preventive Mechanism of monitoring the State’s compliance with the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment in places of detention. 
  • whether on remand or under sentence and whether in adult or youth imprisonment or detention) including Aboriginal prisoners can make telephone calls for free or at no greater cost than the general community.
    • The Victorian Government must, as soon as possible and after consultation with the First Peoples’ Assembly of Victoria and relevant Aboriginal organisations, take all necessary steps to structurally reform the Victorian prison system based on the recommendations of the Cultural Review of the Adult Custodial Corrections System and in particular the following recommendations: a new legislative framework for the adult custodial corrections system which focusses on rehabilitation, safety, cultural and human rights (recommendation 2.1) a new independent Inspectorate of Custodial Services including an Aboriginal Inspector of Adult Custodial Services (recommendation 2.3)enhanced data capability and information management system (recommendation 2.6), but which must apply Indigenous Data Sovereignty principles in relation to data of First Peoples improved professional development for the custodial workforce (recommendation 3.9), but taking into account the above recommendations for strengthening capability, competence and support in relation to human and cultural rights, and other recommendations in relation to Aboriginal prisoners (see recommendations 5.3 to 5.16). 
    • The Victorian Government must: take all legislative, administrative and other steps to implement the United Nations Standard Minimum Rules for the Treatment of Prisoners in relation to the use of solitary confinement at all Victorian prisons and youth justice centres, including an express prohibition on the use of solitary confinement on children and on the use of prolonged or indefinite solitary confinement on adults, and ensure that Victorian prisons and youth justice centres are adequately funded and properly operated so that the common practice of locking down prisoners in their cells for prolonged periods for administrative or management reasons in violation of their human and cultural rights is ended    

form to enable truth telling

  1. By 29 February 2024 the Victorian Government must legislate to create new statutory protection for public records that ensure that information shared on a confidential basis with Yoorrook will be kept confidential for a minimum of 99 years once Yoorrook finishes its work and its records are transferred to the Victorian Government.
    1. The Victorian Government must: review section 534 of the Children, Youth and Families Act 2005 (Vic) to identify a workable model that: i. places clear time limits on the operation of section 534 so that where the only individuals identified in a publication are adults who have provided their con­sent, and the Children’s Court matter is historical in nature, then the prohibition does not apply, andii. enables a Royal Commission or similar inquiry to publish information about a child who is subject to protection proceedings or a protection order, where the child provides that information, is capable of understanding the consequences of losing anonymity and provides their consent, and ensure that any review of section 534 of the Children, Youth and Families Act is First Peoples led insofar as the proposed reforms affect First Peoples. 

Systemic racism lies at the heart of much of the sys­temic injustice affecting First Peoples in both systems. Systemic racism is racial discrimination that occurs through systems and institutions and goes beyond individual racist acts. It refers to laws, policies or prac­tices that may, on their face, look neutral and applied equally, but which in practice unfairly disadvantage certain racial groups and advantage others.

The impact of systemic racism on the over-rep­resentation of First Peoples in the child protection and criminal justice systems is acknowledged by the Victorian Government.7 The State also acknowledges the individual prejudice and bias of some working within these systems

Talking about systemic failures risks obscuring the responsibility of the people with the power to address those failures. Laws, policies and decisions are made and administered by people: from Ministers and senior public servants creating the laws and policies through to the public servants, police officers and others imple­menting them. All, in their respective roles, have the power and responsibility to address systemic injustice. They have human and cultural rights obligations to do so. Yet the evidence heard by Yoorrook shows that too often they have failed to do this.

The past is the present: understanding the connection between contemporary and historic injustice

The present-day failures of Victoria’s criminal justice and child protection systems for First Peoples are deeply rooted in the colonial foundations of the State of Victoria. European invasion, and the colonial laws and policies which followed it, were predicated on beliefs of racial superiority. The systemic racism which persists today has its origins in colonial systems and institutions.

Before European invasion, First Peoples were inde­pendent and governed by collective decision-making processes with shared kinship, language and culture. They belonged to and were custodians of defined areas of country. First Peoples were self-governing, and wielded economic and political power within their own systems of law, lore, culture, spirituality and ritual.13

The purpose of colonisation was land acquisition. Theft of land was achieved by multiple strategies including destruction of culture and language and efforts to eliminate First Peoples through assimilation and violence. Colonial law was imposed on First Peoples. First Peoples were forced off their country and onto reserves and missions where their lives were controlled and cultural practices, spirituality and language suppressed. First Peoples’ children were taken.

Police were frequently the agents of injustice. The early criminal justice system was used to criminalise and imprison First Peoples and legitimise violence to respond to First Peoples’ resistance. While colonial law prohibited murder and rape of First Peoples, its enforcement was almost entirely absent.

Yoorrook repeatedly heard from First Peoples wit­nesses and organisations of the need for self-deter­mination in the child protection and criminal justice systems and some of the ways that could work.22 Many government witnesses spoke about how self-determi­nation should underpin or be at the centre of reform.23 Accordingly, it is critical that government understands and applies the full meaning of self-determination if the commitments it has made are to be realised. Otherwise, the necessary transformation of the child protection and criminal justice system cannot occur.

Yoorrook received evidence showing that as involve­ment in the child protection system intensifies from an initial report to child removal, Aboriginal children are increasingly over-represented. At 30 June 2022, when compared to non-Aboriginal children, Aboriginal children in Victoria were:

18

5.7 times as likely to be the subject of a report to child protection services26

● 7.6 times as likely to have a finalised investiga­tion by child protection services

● 8.5 times as likely to be found to be ‘in need of protection’ by child protection services

● 21.7 times as likely to be in out of home care.27

Yoorrook heard of ‘report fatigue’ in this area. In the last decade there have been at least 19 inquiries about the child protection system in Victoria.28 Recurring themes on the performance of the child protection system for First Peoples include:

Some of Yoorrook’s legislative recommendations will benefit all Victorians in addition to addressing the significant injustices that First Peoples continue to experience in the child protection and criminal justice systems.

The past is the present: the continuation of the colonial project in child protection and criminal justice

From the earliest stages of colonisation, colonists used violence and policing, and forcibly separated First Peoples’ children from their families. The reality for our people is that the conflict has never stopped.1 FIRST PEOPLES’ ASSEMBLY OF VICTORIA

The Yoorrook Justice Commission received com­prehensive evidence that Victoria’s child protection and criminal justice systems inflict serious harm on First Peoples and have done so since European inva­sion. The structural and systemic injustices created in these systems are not just historical, they persist today with critical impacts on First Peoples families and communities. For Aboriginal people in these two intertwined colonial systems, the past is the present

Evidence received by Yoorrook from the Victorian Government has acknowledged that ‘contemporary systems have their roots in colonisation’, and that the continuing impact of structural and systemic injus­tices flow from this.2 This evidence has included apologies and acknowledgements from the Premier, Attorney-General, other relevant ministers and the Chief Commissioner of Police.3 The government has acknowledged:

The State’s dispossession, criminalisation and dehumanisation of First Peoples, the removal of their children, and the denial of Law, Lore and culture, created the conditions for the intergenerational trauma and social and economic inequality experienced today.4

British law — and the police and court officials who enforced it — was a key tool of colonisation and dispossession, creating a very particular and enduring oppressive relationship between First Peoples and the criminal justice system

The over-representation of First Peoples children in the Child Protection and Care systems is a direct result of laws and policies introduced during colonisation. The impact of historical laws and policies … continue to be felt profoundly today.6

As detailed throughout this report, these systems function to separate, punish, control and harm Aboriginal people and families and do so at both the individual and collective level. Law and practices of criminalisation, imprisonment, forced child removal and family and community separation, as well as fundamental human and cultural rights violations, have simply shape-shifted since the arrival of colonisers into present-day Victoria. In evidence, these systems are described and understood as a continuation of the colonial project under which systemic injustice continues today.7 As detailed in the submission to Yoorrook from the Victorian Aboriginal Legal Service:

1

The current legal system, including the crim­inal legal system, is grounded in violence, racism, the lie of terra nullius and denial of justice and Aboriginal self-determination. It is a system that was designed to destroy the oldest continuous culture on earth, and which has not finished pursuing this goal. We continue to see the legacies of historical injustices in the way that our clients are criminalised, marginalised, incarcerated and re-traumatised. Until this structural violence is acknowledged and addressed, the legal system will continue to discriminate against Aboriginal Communities and perpetuate the violence that has been perpetrated for the last 230 years.

Settler colonialism and the logic of elimination

The present-day criminal justice and child protection systems are deeply rooted in the colonial foundations of the State of Victoria. Australia is a settler colony, meaning the colonisers ‘come to stay’.10 This form of colonisation differs from forms of colonisation that have operated in other parts of the globe, such as parts of Africa, where resources are extracted for the benefit of the colonising nation.11

The primary purpose of settler colonialism is to pos­sess land, which is considered a resource. Colonisers, therefore, are dependent on acquiring territory. This is crucial to the ‘success’ of the colony, the wealth of the colonisers, and is necessary to sustain life.12 Because First Peoples’ ownership and presence is ‘in the way’ of the colonisers’ settlement and occupation, non-Indigenous historian Patrick Wolfe describes the settler-colonial project as operating under a ‘logic of elimination’.13 The colony ‘destroys to replace’, targeting not only First Peoples’ lives (for example through frontier violence), but their societies, fami­lies, cultures, identity, and connections, access and claims to land.14

During the present-day State of Victoria’s frontier period, it was the colonisers (actively enabled or not prevented by colonial authorities) who did the work of elimination and erasure, both independently and together in groups. Over time, the violence of the frontier transitioned to the violence of the State, via legislation, policies, and institutions, among other measures. Race is at the centre of this process. In Victoria’s history, race has been used and constructed by the State to facilitate and justify its dehumanisation of, and violence toward, First Peoples.

Since colonisation, the State has sought to control the lives of Victoria’s First Peoples — forcing clans off their respective countries, detaining people on missions and reserves, and in children’s institutions and prisons, separating families and controlling repro­duction via restrictions on marriages. First Peoples have been criminalised and imprisoned for resisting State intervention, for maintaining their sovereign rights to country and culture and not complying with imposed Western laws. These actions and policies involved gross violations of human and cultural rights and were based on complete rejection of the equal dignity and humanity of First Peoples. Commen­tators have described the way Victoria’s project of settler-colonialism in its many forms contravenes the United Nations Genocide Convention.15 As the Lowitja Institute stated in evidence to Yoorrook:

Yet in 2023, the final year of this framework, this evaluation and review mechanism has still not been established.

This matters. One of the stated benefits of the VAAF is that it is a whole-of-Victorian-Government framework, with all departments responsible for their relevant objectives and the Department of Premier and Cabinet playing a coordination role. Without evaluation and review, the risks of fragmented accountability rise dramatically.8 In simple terms, if everyone is respon­sible but no one is held to account, then it is likely that no agency or department will be accountable.

The lack of monitoring limits the accountability of those responsible for the delivery and outcomes of the programs.

Cultural competence and responsivity have a human rights and cultural rights dimension as well as an administrative dimension. The State of Victoria is responsible for ensuring that the human and cultural rights of individuals in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) are observed.31 The State of Victoria is therefore respon­sible for ensuring that its workforce, procedures and administrative processes are fit for this purpose. To be appropriately valued and applied, these human and cultural rights must be adequately understood by all officials administering the system. Yoorrook is not satisfied that these requirements are currently met. Nor is Yoorrook satisfied that the necessary training, procedures and protocols are in place to do so.

Cultural awareness and capability must be a first order issue for organisational leaders. This must be subject to rigorous evaluation.32 Yet too often Yoorrook heard of short programs (some of less than

Australia, unlike every other Western democracy, has no national Charter of Human Rights that comprehen­sively protects people’s human rights in Australian law. Further, Australia has not comprehensively protected the rights in UNDRIP in Australian law. However, in 2006, Victoria

Overview of the child protection system

On the face of it, Aboriginal children and families have never been in better hands, better supported to thrive and be connected to their culture. The truth, however, is this record investment is predicated on the enforced failure of Aboriginal parents, families and communities. This innovative and ground breaking system, created and maintained by government, entrenches disadvantage, intergenerational poverty and cultural genocide on Aboriginal Victorians as a condition of help and support.1 VICTORIAN ABORIGINAL CHILD CARE AGENCY

It discusses the numerous previous inquiries into child protection and notes that, despite these inquiries, the over-representation of Aboriginal children and young people in the system has worsened

As set out in Chapter 3: Accountability, capability and protection of cultural and human rights — when Aus­tralia ratifies an international human rights treaty, the treaty does not automatically become part of Austral­ia’s domestic law. Australia, unlike every other Western democracy, has no national Charter of Human Rights that comprehensively protects people’s human rights in Australian law.

Yet despite this and all the evidence, many reports and consistent calls from First Peoples organisations and experts, the vast majority of child protection resources are still spent on the statutory (tertiary) end of the system, removing children, rather than investing in keeping children with their families.

Colonisation has caused profound ongoing sys­temic injustice for First Peoples communities. This is reflected in high rates of poor social and emotional wellbeing, substance misuse, family violence, home­lessness and justice system contact. On a human level, the intergenerational and ongoing trauma that creates these ‘risk factors’ was a strong theme in the evidence before Yoorrook:

THEY ARE STILL TAKING THE CHILDREN AWAY.

In 2022, there were 491 pre-birth reports regarding First Peoples children. That is around one in five of all pre-birth reports.66 Unpublished DFFH data shows that the rate of pre-birth reports for Aboriginal children is more than double that of non-Aboriginal children.67 For many Aboriginal children, pre-birth reports are the entry to the child protection system — of Aboriginal children subject to one or more pre-birth reports in 2021:

  • 21.5 per cent entered care within three months of birth
  • 24.2 per cent had entered care within six months of birth
  • 28.4 per cent had entered care within 12 months of birth.68

It is highly concerning that approximately 40 per cent of reports about Aboriginal children to child protection services — particularly for unborn children — originate in healthcare systems … Clearly, unsubstantiated reports are causing Aboriginal pregnant women unnecessary stress and trauma at an extremely vulnerable time.69

The systemic bias in the contemporary health sys­tem in pre-birth reporting continues the long history of hospitals (and ‘mother and baby homes’) being unsafe places where Aboriginal babies were stolen from their mothers at birth.70

Child removal

The Department never offered me any direction. They raised protective concerns for me and my children but didn’t resource supports or make referrals. They never told me what they needed from me in order to stop my child from being removed, or for me to get my child back. If they had been willing to work with me, to tell me what I needed to do to have my child stay with me, I would have done what was needed to get my baby back. I would have done anything just to get my baby back.1 MIKALA

Introduction

Rather than supporting First Peoples families, the Victorian child protection system frequently causes further harm and ongoing trauma. The evidence received by Yoorrook indicates a system still exhibiting signs of the systemic racism inherent in its genesis as a tool of colonisation. The Department of Families, Fairness and Housing (DFFH) does not follow its own legislative requirements and policies in relation to First Peoples and is deeply feared and mistrusted by First Peoples families and communities.

Introduction

The State of Victoria has the highest rate of Aboriginal children in out of home care in Australia.2 As at 31 March 2023, 29 per cent of children in care were Aboriginal.3 Yet, the litany of systemic failures in the State’s performance of its duty towards these children indicate that the State, under the current system, is not a good parent.

The child protection system was an instrument of colonisation and still is. For most of Victoria’s history, Aboriginal children were taken away from Aboriginal families for the express purpose of making them assimilate and making Aboriginal people disappear as peoples. The present system is not assimilationist in law. It has legal and policy protections which are intended to respect, protect and fulfill the rights of chil­dren in out of home care. However, there is evidence that these do not operate as they should. To avoid the child protection system operating as assimilationist in fact, this must change. Lack of resources is not an excuse for government failing to meet its human and cultural rights obligations.

We see siblings from the same family all get allocated to different case workers. They are not working to keep the siblings together. There is no consistency in decision making or actions that could impact the children and family as a whole. Siblings with different case workers also then have varying access to their parents, based on the discretion of the individual case worker.19

  • These failures, alongside the legacy of colonialism, perpetuate mistrust in government, the justice system and institutions such as Victoria Police. The criminal justice system was and is an institution of colonisa­tion. As discussed in Chapter 1, from the earliest days of colonisation the criminal justice system has been used against First Peoples in the interests of the colonisers. The various elements of the criminal justice system have each played a role in this process — police, courts and the judiciary and prisons. Five of the first nine men executed in Victoria were Aboriginal men, whose crimes were directly linked to the frontier wars.9 Systemic injustice, including criminalisation of resistance to dispossession, was therefore built into the Victorian criminal justice system. This endures

The Victorian Parliament Legal and Social Issues Committee Inquiry into Victoria’s Criminal Justice System (Legal and Social Issues Committee Inquiry) tabled its report in March 2022. More than a year on, the government has not formally responded to the report’s more than 100 recommendations.25 These recommendations call for wide-ranging reform to address rising rates of imprisonment and reoffending, building on many of RCIADIC’s recommendations. The Legal and Social Issues Committee Inquiry findings and recommendations echo many of the submissions and other evidence put to Yoorrook during this inquiry.

RECOMMENDATIONS NOT SUPPORTED

6 Strengthening human rights and cultural rights compliance Drawing on (but not confined to) the recommendations of the 2015 Review of the Charter and its response to that review, the Victorian Government, following a public consultation process that includes the First Peoples’ Assembly of Victoria and other First Peoples organisations, must clarify and strengthen the Charter so that it more effectively: requires public authorities to act in a way that is and make decisions that are substantively compatible with human rights including Aboriginal cultural rights, and ensures that public authorities are held accountable for acting or making decisions incompatibly with human rights including Aboriginal cultural rights, including by: i. enabling individuals to bring a legal proceeding in the Victorian Civil and Admin­istrative Tribunal for a remedy (including compensation) against public authori­ties who have made decisions or acted incompatibly with human rights including Aboriginal cultural rights under the Charter, and

  • ii. enabling individuals to rely upon the human rights including Aboriginal cultural rights in the Charter in any legal proceedings, as provided (for example) in section 40C of the Human Rights Act 2004 (ACT). 

Bail

  • 32 The Bail Act 1977 (Vic) must immediately be amended to: create a presumption in favour of bail for all offences with the exception of murder, terrorism and like offences
    • place the onus on the prosecution to prove that bail should not be granted due to a specific, serious or immediate risk to the safety of a person or to the administration of justice, with the exception of murder, terrorism and like offencesprohibit remand if a sentence of imprisonment is unlikely if there is a finding of guilt (unless it is necessary to protect the safety of a person or the proper administration of justice pending hearing)repeal the bail offences contained in current sections 30, 30A and 30Brequire all bail decision-makers to explain what information they have considered to understand how a person’s Aboriginality is relevant, and provide the reasons for any refusal to grant an application for bail made by an Aboriginal person, andrequire the Victorian Government and Victoria Police to publicly report, at least annually, bail and remand rates for Aboriginal people, and summary data of the reasons given by bail decision-makers for refusing bail
  • The Victorian Government must urgently introduce legislation to raise the minimum age of criminal responsibility in Victoria to 14 years without exceptions and to prohibit the detention of children under 16 years.

Thank you for accompanying me on my journey within the bowels of Australian Colon-ialism. It is a place that we all need to free ourselves from. What you may say is an impossible dream and yet without the dreamers there would never ever be a better world.

I have a simple idea which is to make a film. A film which will shine a light upon the inner workings of the thunderbox through humour and tragedy. If you are interested you are most welcome to come and have a look at

A Castle The Medi Evil Nightmare

 and In The Public Interest.

The script and the screen play are written all that is required is some funding, about $500,000 and a first nations person with film experience to join us in making a beautiful film, a film which will help to make this nation where the respect for family and community are woven into the fabric of the laws of Australia as a Treaty is formed.

I can be contacted via email charada@thecommunitycollaborators.com

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