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:
- 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
- Partnering with Aboriginal and other sector stakeholders to accurately refine the scope of delivery, ensuring that the intent of recommendations is met
- Using innovative funding models that enable desired outcomes of recommendations to be delivered in a sustainable way, over time and across budget cycles
- Building on and leveraging existing investment and resourcing to maximise efficiencies and benefits
- 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.
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