Category 4: Urgent reforms to the criminal justice system

27. 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:
    1. investigate and determine all complaints about police (except for minor customer service matters)
    2. investigate and report on all police contact deaths and serious incident
    3. conduct independent monitoring of and reporting on police custody and detention
    4. on its own motion, monitor, audit, systemically review and report on the exercise of police powers and interactions with the public including customer service matters
    5. undertake own motion, public interest investigations, and
    6. publish reports in the public interest.
       
       The new authority must:
       
    7. have powers to arrest, search property and compel the production of information including from Victoria Police, and
    8. include a dedicated division for complaints from First Peoples that is under First Peoples leadership.

Lead Minister/agency

Lead Minister: Attorney-General

Lead agency: DJCS

Liaison agency: DPC and Victoria Police

28. 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:
    1. legislating a positive duty upon Victoria Police to:
       1. take into account an Aboriginal person’s unique background and systemic factors when making decisions on cautioning or diversion
       2. demonstrate the steps taken to discharge this obligation, and
       3. record reasons for their decisions
    2. 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), and
    3. Victoria Police publishing cautioning data in its Annual Report to Parliament, including specific data comparing cautioning rates for Aboriginal and non-Aboriginal people.

Lead Minister/agency

Lead Minister: Attorney-General and Minister for Police

Lead agency: DJCS and Victoria Police (recommendation 28c)

Liaison agency: DPC

29. 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.

Lead Minister/agency

Lead Minister: Attorney-General

Lead agency: DJCS

Liaison agency: DFFH, DPC and Victoria Police

30. In relation to the decriminalisation of public intoxication:
    1. 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’, and
    2. the Victorian Government’s planned independent evaluation of the monitoring of police conduct must:
       1. be First Peoples led, with appropriate governance by them
       2. cover at least the first 12 months and then three years of implementation, and
       3. have results that are made public.

Lead Minister/agency

Lead Minister: Minister for Police (recommendation 30a) and the Attorney-General (recommendation 30b)

Lead agency: DJCS and Victoria Police (recommendation 30a)

Liaison agency: DH and DPC

31. 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:
    1. 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
    2. 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 caused
    3. recognition of ongoing systemic racism within Victoria Police and the need for this to be identified, acknowledged and resisted, and
    4. experience, 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.

Lead Minister/agency

Lead Minister: Minister for Police

Lead agency: DJCS

Liaison agency: DPC and Victoria Police

32. The Bail Act 1977 (Vic) must immediately be amended to:
    1. create a presumption in favour of bail for all offences with the exception of murder, terrorism and like offences
    2. 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 offences
    3. prohibit 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)
    4. repeal the bail offences contained in current sections 30, 30A and 30B
    5. require 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
    6. 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.

Lead Minister/agency

Lead Minister: Attorney-General

Lead agency: DJCS and Victoria Police (recommendation 32f)

Liaison agency: DPC

33. The Victorian Government must:
    1. 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
    2. ensure that the development and ongoing monitoring of performance of the action plan is First Peoples led.

Lead Minister/agency

Lead Minister: Attorney-General and Minister for Police

Lead agency: DJCS

Liaison agency: DPC and Victoria Police

34. 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.

Lead Minister/agency

Lead Minister: Attorney-General

Lead agency: DJCS

Liaison agency: DPC and Victoria Police

35. 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.

Lead Minister/agency

Lead Minister: Attorney-General and Minister for Youth Justice

Lead agency: DJCS

Liaison agency: DFFH, DPC and Victoria Police

36. The Victorian Government’s planned new Youth Justice Act must:
    1. explicitly recognise the paramountcy of human rights, including the distinct cultural rights of First Peoples, in all aspects of the youth justice system
    2. embed these rights in the machinery of the Act, and
    3. require all those involved in the administration of the Act to ensure those rights.

Lead Minister/agency

Lead Minister: Attorney-General and Minister for Youth Justice

Lead agency: DJCS

Liaison agency: DPC and Victoria Police

37. The Victorian Government must:
    1. amend the Sentencing Act 1991 (Vic) to include a statement of recognition acknowledging:
       1. the right of First Peoples to self-determination
       2. 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 disadvantage
       3. the key role played by the criminal justice system in the dispossession and assimilation of First Peoples
       4. the survival, resilience and success of First Peoples in the face of the devastating impacts of colonisation, dispossession and assimilationist policies, and
       5. 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.
    2. 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 offenders
    3. amend the Sentencing Act to, in relation to sentencing:
       1. require courts to take into account the unique systemic and background factors affecting First Peoples, and
       2. require the use of Gladue-style reports for this purpose, and
    4. ensure that:
       1. there is comprehensive cultural awareness training of lawyers and the judiciary to support the implementation of these requirements, and
       2. 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.

Lead Minister/agency

Lead Minister: Attorney-General

Lead agency: DJCS

Liaison agency: DPC and Victoria Police

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.

Lead Minister/agency

Lead Minister: Attorney-General and Minister for Youth Justice

Lead agency: DJCS

Liaison agency: DFFH, DPC and Victoria Police

39. The Victorian Government must:
    1. where appropriate decriminalise offences linked with disadvantage arising from poverty, homelessness, disability, mental ill-health and other forms of social exclusion, and
    2. 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.

Lead Minister/agency

Lead Minister: Attorney-General

Lead agency: DJCS

Liaison agency: DFFH, DPC and Victoria Police

40. The Victorian Government must:
    1. amend relevant legislation to expressly prohibit routine strip searching at all Victorian prisons and youth justice centres, and
    2. ensure that data on the use of strip searching is made publicly available and used to monitor compliance with the prohibition on routine use.

Lead Minister/agency

Lead Minister: Attorney-General, Minister for Corrections and Minister for Youth Justice

Lead agency: DJCS

Liaison agency: DPC

41. 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.

Lead Minister/agency

Lead Minister: Attorney-General, Minister for Corrections and Minister for Youth Justice

Lead agency: DJCS

Liaison agency: DFFH, DPC, Victoria Police, as well as all departments through the inter-departmental working group

42. The Victorian Government must immediately take all necessary steps to ensure prisoners (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.

Lead Minister/agency

Lead Minister: Minister for Corrections and Minister for Youth Justice

Lead agency: DJCS

Liaison agency: DPC

43. 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:
    1. a new legislative framework for the adult custodial corrections system which focusses on rehabilitation, safety, cultural and human rights (recommendation 2.1)
    2. a new independent Inspectorate of Custodial Services including an Aboriginal Inspector of Adult Custodial Services (recommendation 2.3)
    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
    4. 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
    5. other recommendations in relation to Aboriginal prisoners (see recommendations 5.3 to 5.16).

Lead Minister/agency

Lead Minister: Minister for Corrections

Lead agency: DJCS

Liaison agency: DPC

44. The Victorian Government must:
    1. 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
    2. 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.

Lead Minister/agency

Lead Minister: Attorney-General, Minister for Corrections and Minister for Youth Justice

Lead agency: DJCS

Liaison agency: DPC