Print - Victorian Government Response to the Yoorrook for Justice report - April 2024

Acknowledgement

The Victorian Government acknowledges the work of the Yoorrook Justice Commission (Commission) and the submission of its second interim report, Yoorrook for Justice (the Report).

We thank all those individuals, organisations, and community members who participated in this Inquiry, through written submissions, hearings and roundtables. We acknowledge the significance of the evidentiary records produced and shared in relation to Victoria’s truth-telling process.

Acknowledgement of Country

The Victorian Government proudly acknowledges the First Peoples of Victoria as the Traditional Owners and custodians of the land and waterways on which we live and work.

We honour and pay our respects to Elders past and present. We acknowledge that Aboriginal peoples continue to represent the world’s oldest living culture.

In working towards Treaty, the Victorian Government is committed to acknowledging the truth of Victoria’s history and laying the foundations for improved relationships between the State, Aboriginal Victorians and the broader Victorian community.

The Victorian Government is committed to First Peoples’ self-determination. Treaty is the process required to ensure genuine self-determination for Victorian Traditional Owners and First Peoples.

Foreword from the Premier

As Premier of Victoria, I am deeply moved by the stories and truths shared through the Yoorrook for Justice report.

These stories demonstrate First Peoples’ strength, resilience and connection. These stories also carry the weight of profound intergenerational pain and trauma.

I acknowledge the trauma experienced by many First Peoples who shared their truths during the Commission’s inquiry into Victoria's child protection and criminal justice systems.

Every Yoorrook Justice Commission inquiry allows the Victorian Government to develop a deeper understanding of how past injustices have influenced modern-day institutions, policies and approaches.

Our path forward will be guided by the experiences of First Peoples. The Yoorrook Justice Commission’s truth-telling process will help to inform how the Victorian Government moves toward Treaty.

It is a journey that we undertake with humility and determination, acknowledging that the road to achieve real change is long but essential. We are committed to working together to create a Victoria that is inclusive, just and reflective of our shared values.

Victorians have listened, learned and had to confront hard truths, but from these hearings we can create a brighter shared future. As we come to terms with our past, we can also learn from and celebrate thousands of years of strong Aboriginal culture.

As Premier, I am honoured to be part of this significant moment in our history and am committed to this journey, ensuring that the experiences and truths of First Peoples, as outlined in the Report, are understood, as we work together for meaningful and lasting outcomes.

When Aboriginal Victorians thrive, all Victorians thrive.

The Hon. Jacinta Allan MP
Premier of Victoria

Message from the Minister for Treaty and First Peoples

I present the Victorian Government’s response to the Yoorrook for Justice report. The Report is the culmination of the Commission’s year-long inquiry into Victoria's child protection and criminal justice systems.

As a Government, our response to this Report is guided by the comprehensive truth-telling process undertaken by the Yoorrook Justice Commission.

The Commission's dedication to hearing directly from those affected is recorded in more than 100 individual testimonies and numerous organisational submissions received throughout the public hearings, roundtable discussions and on-site visits. This process has not only brought to light the experiences of many who have suffered in the child protection and criminal justice systems, but also underscored the critical need for change.

The statistics and stories presented in the Report paint a clear picture of the ongoing injustices faced by First Peoples in Victoria. I recognise the decades of activism undertaken by First Peoples to fight for truth-telling to ensure the impacts of colonisation are recognised and addressed.

The Yoorrook for Justice report challenges us to look critically at our systems, to acknowledge past failures, and to commit to a path of reform. As a Government, our response is driven by a responsibility to honour the voices of those who courageously shared their experiences and a commitment to implementing the changes necessary to ensure just and equitable treatment of First Peoples in the child protection and criminal justice systems.

I am aware that the proposed reforms outlined in the Report are significant. Our response seeks to target historical and contemporary injustices through reforms to our child protection and criminal justice systems, guided by respect for First Peoples’ cultural rights. Our approach will be one of reflection, partnership, learning and action, ensuring that the changes we implement are effective and enduring.

I remain steadfast in my commitment to listening to First Peoples, cooperatively engaging with the Commission and supporting the First Peoples’ Assembly of Victoria on the path to Treaty. I look forward to continuing to walk alongside First Peoples on the path to self-determination and working to create a better, fairer Victoria.

The Hon. Natalie Hutchins MP
Minister for Treaty and First Peoples

Response to the Yoorrook for Justice report

The Victorian Government is proud to have established the nation’s first formal truth-telling process into historical and ongoing injustices experienced by First Peoples.
Aboriginal Victorians have been clear and consistent in the call for truth-telling as an essential part of the Treaty process. In June 2020, the First Peoples’ Assembly of Victoria passed a resolution seeking commitment from the State to establish a truth and justice process. The following month, the Victorian Government announced its commitment to establish such a process. Working in partnership with the First Peoples’ Assembly, the Government established the Commission as the nation’s first formal truth-telling process
in May 2021.
The Commission has an unprecedented and broad mandate to hear, record and make recommendations to address the truth of First Peoples’ experiences of colonisation in Victoria from 1788 to the present. Its objectives are to:
- establish a public record based on First Peoples’ experiences of systemic injustices,
- develop a shared understanding among all Victorians of the individual and collective impact of systemic injustices, and
- determine the causes and consequences of systemic injustices, including the role of the State’s laws and policies.
The Commission’s second interim report, Yoorrook for Justice, was delivered to the Governor of Victoria and the First Peoples’ Assembly on 31 August 2023. The Report is the culmination of the Commission’s extensive inquiries into systemic injustice experienced by First Peoples in the child protection and criminal justice systems. The Report details extensive systemic injustice, racism, discriminatory laws and policy failures that have caused, and continue to cause, harm to First Peoples.
The Victorian Government welcomes this Report. We were pleased to provide evidence to this line of inquiry, including through:
- providing more than 4,000 documents to the Commission through the Notice to Produce process, and
- eighteen State witnesses providing evidence over a 27-day hearing block between April and May 2023, including Victorian Government ministers, senior public servants, and the Chief Commissioner of Victoria Police.
The 445-page Report emphasises that present injustice has deep roots in the colonial foundations of the State and makes 46 recommendations for change. In considering the Report’s recommendations, the Victorian Government:
- supports four recommendations in full and supports in principle 24 recommendations to reform the child protection and criminal justice systems
- will further consider 15 recommendations (categorised as ‘under consideration’)
- does not support three recommendations.
The response to the Report provides a unique opportunity for the Victorian Government to acknowledge and face the truth of Victoria’s history and lay the foundations for improved relationships between the State, Aboriginal Victorians and the broader Victorian community.
The Report found that there is an unbroken connection between First Peoples’ experiences with colonial child removal practices and their experiences with the current Victorian child protection system. In response to this finding, the Report calls for urgent reforms in the child protection system regarding matters pertaining to early help, prevention and intervention, child removal, out of home care, as well as permanency and reunification. The Victorian Government acknowledges the inter-generational trauma caused by the failings of Victoria’s child protection system and the recommendations made by the Commission to remedy ongoing injustices experienced by First Peoples within the system.
The Report also highlighted the continued over-representation of First Peoples in the criminal justice system, as well as their experiences of systemic racism. The Report also acknowledged the ongoing tragedy that is Aboriginal deaths in custody. In response, the Report recommended reforms in relation to prisons, bail, youth justice, courts, sentencing and classification of criminal offences. The Victorian Government acknowledges the over-representation of First Peoples within the criminal justice system and the Commission’s recommendations to address both historic and contemporary injustices pertaining to the system.
The Victorian Government supports and commits to action on recommendations 9, 14, 30 and 45. Supporting these recommendations aligns with work already underway. This includes our continued commitment to improving transparency in government investments and cultural competency in the child protection system, decriminalising public intoxication, and ensuring that First Peoples have choices about post-inquiry access and use of the information they provide to the Commission.
The Victorian Government supports in principle 24 recommendations, meaning it supports the policy intent or merit of the recommendation. To ensure that the intent of the recommendations is effectively reflected, it is critical for government to carefully consider design, planning and implementation issues. This may involve:
- further scoping of implementation design and planning
- consideration of whether an agreement with a non-government body would be required to enable reform
- working with Aboriginal organisations to increase their delivery capacity and workforce prior to implementation
- strengthening current government service delivery, referral pathways and/or legal services prior to implementation
- consideration of whether any funding or additional investment would be required, acknowledging that this may not occur immediately and is subject to Victoria’s fiscal circumstances
- consideration of whether the underlying intention of the recommendation can be achieved through current reforms or an alternate mechanism
- resolving potential implementation conflicts with other recommendations that require legislative amendments.
The result of these considerations may mean that not all recommendations are progressed within a set timeframe.
The Government acknowledges that several recommendations are supported in principle, but are subject to new funding due to the scale of the recommendation and significance of implementation costs. For example, the Victorian Government is encouraged by the Commission’s recommendations to scale up existing programs, such as Marram-Ngala Ganbu (Koori Family Hearing Day) at the Shepparton and Broadmeadows Children’s Courts (recommendation 19 seeks a state-wide rollout). However, progress against such recommendations is not confirmed and will be subject to broader fiscal and workforce constraints.
The Victorian Government will consider 15 recommendations (categorised as under consideration) as further analysis is required for the Victorian Government to determine its position, noting:
- there are considerable implications for current and future policy or legislative programs, and further analysis and/or consultation with relevant government departments, Aboriginal organisations, and other sector stakeholders is required
- elements of the recommendation may be negotiated through Treaty, and the State cannot presuppose outcomes of the Treaty process. Treaty negotiations are set to commence later in 2024. The Treaty Negotiation Framework notes ‘welfare, including child and family services’ and ‘criminal justice system issues’ as possible subject matters for negotiation, enabling elements of the recommendations to be considered in future Treaty outcomes.
Three recommendations relating to existing legislation are not supported:
- Recommendation 6 in part seeks that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) enable individuals to bring cases to the Victorian Civil and Administrative Tribunal (VCAT) for government decisions made in breach of the Charter. This would involve considerable expansion of VCAT’s remit, which is not supported at this time.
- Recommendation 32 calls for amendment of the Bail Act 1977 (Vic). The reforms in the Bail Amendment Act 2023 (Vic), which commenced in March 2024, align with the intent and some parts of this recommendation. The reforms seek to reduce unnecessary remand for people accused of low-level offending, including by abolishing “double uplift”, limiting the reverse-onus bail tests to only those charged with serious offences, refining the “unacceptable risk” test and repealing two Bail Act 1977 (Vic) offences, namely “commit indictable offence whilst on bail” and “contravene certain conduct conditions” (breach bail conditions). The reforms also require a bail decision maker that refuses bail to an Aboriginal person to identify and record the considerations they had regard to relating to the person's Aboriginality, such as systemic discrimination, the risk of harm that custody poses to Aboriginal people, the importance of connection to culture and community and any issues that arise in relation to the person’s history, culture or circumstances. The Victorian Government will consider whether further action is required following the outcomes of a statutory review of the Bail Amendment Act 2023 (Vic), expected to be delivered by September 2026.
- Recommendation 35 seeks to introduce legislation to raise the minimum age of criminal responsibility in Victoria to 14 years without exceptions and prohibit the detention of children under 16 years. The Victorian Government maintains its commitment to raising the age of criminal responsibility to 12 and strengthening the existing legal presumption known as doli incapax in late 2024, and to 14 by 2027, with exceptions and subject to the implementation of an alternative service model.
A response to each recommendation is at Annexure A which provides Whole-of-Victorian Government (WOVG) positions, as well as lead and liaison agency arrangements. The response categories are derived from the Victorian Government’s Guidelines for submissions and responses to inquiries.
The Victorian Government is committed to delivering the transformative change needed, and we will do so in a considered and collaborative way together with the Commission and community, recognising that achieving these goals will extend beyond the Commission’s proposed 12-month timeframe. Delivering these reforms and achieving meaningful change in line with the intent of the recommendations will be complex and will require an effective implementation approach to provide the best chance of success.
The Victorian Government’s implementation approach across all supported and supported-in-principle recommendations will be underpinned by the following guiding principles:
1. Sequencing the implementation of recommendations in a pragmatic way; for example, prioritising those where resourcing is available now, or delivering reforms where it is foundational to other reforms
2. Partnering with Aboriginal and other sector stakeholders to accurately refine the scope of delivery, ensuring that the intent of recommendations is met
3. Using innovative funding models that enable desired outcomes of recommendations to be delivered in a sustainable way, over time and across budget cycles
4. Building on and leveraging existing investment and resourcing to maximise efficiencies and benefits
5. Working collaboratively across multiple departments and/or non-government bodies so that reforms can be long-term and structural, and not piecemeal or in siloes.
The Government will incorporate lessons learned from other major reforms to support improved outcomes for First Peoples inside and outside of the child protection and criminal justice systems.
Continued engagement with stakeholders in designing and implementing recommendations will strengthen the Victorian Government’s implementation approach and commitment to self-determination, including with:
- the First Peoples’ Assembly of Victoria
- the Aboriginal Children’s Forum
- the Aboriginal Justice Caucus
- the Commissioner for Aboriginal Children and Young People, and
- ongoing partnerships with Aboriginal Community Controlled Organisations and other sector stakeholders.
The Victorian Government is progressing a range of reforms in the child protection and criminal justice systems to improve outcomes for Aboriginal Victorians, including:
- legislative reform in the Bail Amendment Act 2023, which took effect on 25 March 2024, and seeks to reduce unnecessary remand for people accused of low-level offending, and address the disproportionate rate at which Aboriginal people are remanded when accused of such offending
- raising the minimum age of criminal responsibility in two stages, from 10 to 12 without exceptions initially and then to 14 years with exceptions for serious crimes by 2027, subject to the design and implementation of an alternative service model
- continuing progress towards achieving the National Agreement on Closing the Gap targets to reduce the over-representation of Aboriginal and Torres Strait Islander children in out of home care, the rate of Aboriginal and Torres Strait Islander adults held in incarceration, and young Aboriginal and Torres Strait Islander people (10-17 years) in detention by 2031
- working with the Aboriginal community and family services sector to address the over-representation of Aboriginal children involved with the child protection system through the Wungurilwil Gapgapduir: Aboriginal Children and Families Agreement 2018.
- working towards the vision of Burra Lotjpa Dunguludja, the Aboriginal Justice Agreement
  (Phase 4), whereby Aboriginal people have access to an equitable justice system that is shaped by self-determination, and protects and upholds their human, civil, legal and cultural rights
- working in partnership with Aboriginal communities to strengthen Aboriginal leadership and self-determination in the youth justice system through Wirkara Kulpa: Aboriginal Youth Justice Strategy 2022-2032
- advancing Aboriginal self-determination through systemic and structural transformation under the Victorian Aboriginal Affairs Framework 2018-2023.
Victoria’s Treaty process is central to embedding self-determination and direct structural reforms across Government. Victoria’s Treaty Negotiation Framework, agreed between the First Peoples’ Assembly and the State in October 2022, makes clear that Victoria’s forthcoming Statewide and Traditional Owner Treaty negotiations will be informed by relevant findings and recommendations of the Commission.
Three of the Report’s recommendations are contingent on the Treaty process. Recommendations 1 and 2 of the Report call for transformative change in the child protection and criminal justice systems via the transfer of decision-making power, authority, control and resources to First Peoples, to be negotiated through the Treaty process. Recommendation 4 urgently requests that the Victorian Government negotiate in good faith with the First Peoples’ Assembly of Victoria to establish a new commission to oversee First Peoples’ policies and programs, to ensure accountability, cultural competence and compliance with human and cultural rights.
The Victorian Government response to the Report reaffirms the State’s commitment to ensure Treaty negotiations are informed by recommendations of the Commission and assists the Commission to achieve its truth-telling objectives.

Annexure A - Responses to Yoorrook for Justice report recommendations

Category 1: Transformative change through the Treaty Process

1. The Victorian Government must:
  1. 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:
    system design
    obtaining and allocating resources
    powers of, and appointments to bodies or institutions
    accountability and oversight functions including new First Peoples led bodies, oversight processes or complaints pathways.
  2. negotiate this through the Treaty process including through potential interim agreements
  3. 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
  4. recognising the urgent need for immediate reform, without delay take all necessary steps to begin and diligently progress the establishment of a dedicated child protection system for First People children and young people supported by stand-alone legislation based upon the right of First Peoples to self-determination to be developed by an Aboriginal representative body or bodies of organisation/s sufficiently resourced by government for this purpose.
WOVG Position
Under consideration
Lead Minister/agency
Lead Minister: Minister for Children and Minister for Treaty and First Peoples (Minister for Children to lead on the substance of this recommendation, Minister for Treaty to co-lead to the extent it arises in Treaty negotiations).
Lead agency: DFFH and DPC
Liaison agency: Victoria Police
1. 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: 
  1. system design
  2. obtaining and allocating resources 
  3. powers of, and appointments to bodies or institutions, and 
  4. accountability and oversight functions including new First Peoples led oversight processes or complaints pathways. 
WOVG Position
Under consideration
Lead Minister/agency
Lead Minister: Attorney-General and Minister for Treaty and First Peoples
Lead agency: DJCS and DPC
Liaison agency: Victoria Police

Category 2: Urgent reforms of accountability, cultural competence, and compliance with human and cultural rights

1. To ensure accountability for First Peoples related programs and policies by those responsible for their development and delivery:
  1. government bodies must ensure that First Peoples related programs and policies are rigorously monitored and evaluated
  2. 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)
  3. 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
  4. where programs or policies do not have monitoring or evaluation included, the inclusion of these must be actioned urgently
  5. these monitoring and evaluation processes must, in accordance with the Burra Lotjpa Dunguludja (AJA4) Monitoring and Evaluation Framework, including:
    being consistent with First Peoples values
    reflecting First Peoples priorities for what is measured and how it is measured
    having an approved regular reporting cycle
    having a commitment to the open reporting of results.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Minister for Treaty and First Peoples
Lead agency: DPC
Liaison agency: All departments
1. The Victorian Government must as an urgent priority, having regard to the right of First Peoples to self-determination, negotiate in good faith with the First Peoples’ Assembly of Victoria: 
  1. the establishment of an independent and authoritative oversight and accountability commission for the monitoring and evaluation of First Peoples related policies and programs 
  2. the detailed functions and membership of the commission, and  
  3. to give the commission the necessary resources and authority to hold responsible government ministers, departments and entities to account for the success or failure of the programs they develop and deliver.
WOVG Position
Under consideration
Lead Minister/agency
Lead Minister: Minister for Treaty and First Peoples
Lead agency: DPC
Liaison agency: All departments
1. The Victorian Government must as soon as possible significantly upscale the capability, competence and support in relation to human rights, including Aboriginal cultural rights, of all persons appointed to work or working in: 
  1. the child protection system
  2. the corrections system, including prisons
  3. the youth justice system, including youth detention and like facilities and the bail system 
  4. the adult justice system including the bail system
  5. Victoria Police, and 
  6. the forensic mental health system
    
    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: 
  7. review and revise all relevant policies, procedures, protocols, administrative directions, guidelines and like documents 
  8. review all relevant training courses and programs, and 
  9. 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.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Minister for Treaty and First Peoples
Lead agency: DPC
Liaison agency: DFFH, DH, DJCS and Victoria Police (recommendation 5e)
1. 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:
  1. 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
  2. ensures that public authorities are held accountable for acting or making decisions incompatibly with human rights including Aboriginal cultural rights, including by:
    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
    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).
WOVG Position
Do not support
Lead Minister/agency
Lead Minister: Attorney-General
Lead agency: DJCS
Liaison agency: All departments

Category 3: Urgent reforms to the child protection system

1. The Victorian Government must amend the Commission for Children and Young People Act 2012 (Vic) to:
  1. 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
  2. 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
  3. 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
  4. 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.
WOVG Position
Under consideration
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DJCS, DPC and Victoria Police
1. The Victorian Government must:
  1. 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
  2. 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 Act
  3. as 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, and
  4. review 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.
WOVG Position
Under consideration
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: All departments
1. The Victorian Government must publicly report annually on the amount and proportion:
  1. 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), and
  2. of funding allocated to Aboriginal Community Controlled Organisations compared to mainstream services for early intervention (family and parenting services), secondary and tertiary services.
WOVG Position
Support
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DPC
1. The Victorian Government must immediately give a direction to health services (including perinatal, maternal and child health services) that:
  1. 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, and
  2. this 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.
WOVG Position
Support
Lead Minister/agency
Lead Minister: Minister for Health
Lead agency: DH
Liaison agency: DFFH and DPC
1. The Department of Families, Fairness and Housing must ensure that:
  1. 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:
    provide input into that decision
    ensure people with appropriate training and expertise are involved, and
    offer culturally safe supports to the mother, father and/or significant others in the family network
  2. 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
  3. pre-birth reports that are assessed as not requiring further action are to be excluded from this scheme.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DPC
1. Whenever:
  1. the Department of Families, Fairness and Housing receives a pre-birth report regarding a pregnant Aboriginal woman, or
  2. a child protection report is substantiated regarding an Aboriginal child, then:
  3. 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.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DJCS and DPC
1. 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:
  1. is First Peoples led and overseen by a First Peoples governance group
  2. has methodology that includes a review of individual cases by the Commissioner for Aboriginal Children and Young People, and
  3. makes recommendations that include actions to reduce child protection practitioner racial bias when applying the Framework.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DPC
1. The Department of Families, Fairness and Housing must ensure that:
  1. all incoming child protection staff, as part of their pre-service education, complete cultural awareness and human and cultural rights training covering issues including:
    the history of colonisation and in particular the impact of ‘protection’ and assimilation policies
    the continuing systemic racism and paternalism inherent in child protection work today that must be identified, acknowledged and resisted
    the value of First Peoples family and child-rearing practice
    upholding human rights including Aboriginal cultural rights, and
    the strength of First Peoples families and culture and culturally appropriate practices
  2. 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
  3. completion rates for training are published by the Department annually.
WOVG Position
Support
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DPC
1. In relation to determining the identity of First Peoples children:
  1. 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, and
  2. the 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.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Minister for Children and Minister for Treaty and First Peoples
Lead agency: DFFH and DPC
Liaison agency: All departments
1. The Department of Families, Fairness and Housing must urgently take steps to ensure full compliance with its obligations to:
  1. convene an Aboriginal Family Led Decision Making meeting before making any significant decision about an Aboriginal child, and record the outcome, and
  2. consult with the Aboriginal Child Specialist Advice and Support Service on all significant decisions affecting an Aboriginal child and record the outcome.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DPC
1. The Victorian Government must amend the Children, Youth and Families Act 2005 (Vic) to:
  1. specify that priority be given to keeping siblings together in placement decisions (both in out of home care and permanent placements)
  2. include in the decision-making principles a presumption that removal of a First Peoples child from their family or community causes harm
  3. provide 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
  4. 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.
WOVG Position
Under consideration
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DJCS and DPC
1. The Victorian Government must:
  1. ensure Children’s Court of Victoria judicial officers determine child protection matters state-wide, and
  2. abolish the current practice of having non-specialist magistrates determining child protection matters in some rural and regional court locations.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Attorney-General
Lead agency: DJCS
Liaison agency: DFFH and DPC
1. The Victorian Government must as soon as possible expand and sufficiently resource the Marram-Ngala Ganbu (Koori Family Hearing Day) state-wide.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Attorney-General
Lead agency: DJCS
Liaison agency: DFFH and DPC
1. The Victorian Government must address barriers to First Peoples becoming carers for First Peoples children in the child protection system by:
  1. simplifying application and vetting processes and improving support for people navigating the process
  2. 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, and
  3. ensuring 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.
WOVG Position
Under consideration
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DPC
1. 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.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DH, DJCS, DPC and NDIA
1. 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.
WOVG Position
Under consideration
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DJCS and DPC
1. The Victorian Government must urgently:
  1. ensure that the Framework to Reduce Criminalisation of Young People in Residential Care is applied in all cases
  2. establish 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 body
  3. ensure 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
  4. fund the development and delivery of training to residential care providers and Victoria Police on implementing the Framework in practice.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DJCS, DPC and Victoria Police
1. The Commission for Children and Young People and Commissioner for Aboriginal Children and Young People must:
  1. monitor compliance with the Framework to Reduce Criminalisation of young people in residential care current 18-month action plan
  2. review individual cases
  3. specify targets for reduced police contact, and
  4. publicly report on outcomes.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DJCS, DPC and Victoria Police
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.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DJCS and DPC
1. The Victorian Government must:
  1. 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
  2. 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.
WOVG Position
Under consideration
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DPC

Category 4: Urgent reforms to the criminal justice system

1. 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.
WOVG Position
Under consideration
Lead Minister/agency
Lead Minister: Attorney-General
Lead agency: DJCS
Liaison agency: DPC and Victoria Police
1. 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:
    take into account an Aboriginal person’s unique background and systemic factors when making decisions on cautioning or diversion
    demonstrate the steps taken to discharge this obligation, and
    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.
WOVG Position
Under consideration
Lead Minister/agency
Lead Minister: Attorney-General and Minister for Police
Lead agency: DJCS and Victoria Police (recommendation 28c)
Liaison agency: DPC
1. 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.
WOVG Position
Under consideration
Lead Minister/agency
Lead Minister: Attorney-General
Lead agency: DJCS
Liaison agency: DFFH, DPC and Victoria Police
1. 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:
    be First Peoples led, with appropriate governance by them
    cover at least the first 12 months and then three years of implementation, and
    have results that are made public.
WOVG Position
Support
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
1. 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.
WOVG Position
Under consideration
Lead Minister/agency
Lead Minister: Minister for Police
Lead agency: DJCS
Liaison agency: DPC and Victoria Police
1. 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.
WOVG Position
Do not support
Lead Minister/agency
Lead Minister: Attorney-General
Lead agency: DJCS and Victoria Police (recommendation 32f)
Liaison agency: DPC
1. 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.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Attorney-General and Minister for Police
Lead agency: DJCS
Liaison agency: DPC and Victoria Police
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.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Attorney-General
Lead agency: DJCS
Liaison agency: DPC and Victoria Police
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.
WOVG Position
Do not support
Lead Minister/agency
Lead Minister: Attorney-General and Minister for Youth Justice
Lead agency: DJCS
Liaison agency: DFFH, DPC and Victoria Police
1. 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.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Attorney-General and Minister for Youth Justice
Lead agency: DJCS
Liaison agency: DPC and Victoria Police
1. The Victorian Government must:
  1. amend the Sentencing Act 1991 (Vic) to include a statement of recognition acknowledging:
    the right of First Peoples to self-determination
    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
    the key role played by the criminal justice system in the dispossession and assimilation of First Peoples
    the survival, resilience and success of First Peoples in the face of the devastating impacts of colonisation, dispossession and assimilationist policies, and
    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:
    require courts to take into account the unique systemic and background factors affecting First Peoples, and
    require the use of Gladue-style reports for this purpose, and
  4. ensure that:
    there is comprehensive cultural awareness training of lawyers and the judiciary to support the implementation of these requirements, and
    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.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Attorney-General
Lead agency: DJCS
Liaison agency: DPC and Victoria Police
1. 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.
WOVG Position
Under consideration
Lead Minister/agency
Lead Minister: Attorney-General and Minister for Youth Justice
Lead agency: DJCS
Liaison agency: DFFH, DPC and Victoria Police
1. 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.
WOVG Position
Under consideration
Lead Minister/agency
Lead Minister: Attorney-General
Lead agency: DJCS
Liaison agency: DFFH, DPC and Victoria Police
1. 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.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Attorney-General, Minister for Corrections and Minister for Youth Justice
Lead agency: DJCS
Liaison agency: DPC
1. 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.
WOVG Position
Support in principle
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
1. 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.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Minister for Corrections and Minister for Youth Justice
Lead agency: DJCS
Liaison agency: DPC
1. 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).
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Minister for Corrections
Lead agency: DJCS
Liaison agency: DPC
1. 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.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Attorney-General, Minister for Corrections and Minister for Youth Justice
Lead agency: DJCS
Liaison agency: DPC

Category 5: Law reform 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.
WOVG Position
Support
Lead Minister/agency
Lead Minister: Minister for Treaty and First Peoples
Lead agency: DPC
Liaison agency: DJCS
1. The Victorian Government must:
  1. review section 534 of the Children, Youth and Families Act 2005 (Vic) to identify a workable model that:
    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, and
    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
  2. 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.
WOVG Position
Support in principle
Lead Minister/agency
Lead Minister: Minister for Children
Lead agency: DFFH
Liaison agency: DJCS and DPC

Victorian Government Response to the Yoorrook for Justice report - April 2024

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