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Community Affairs References Committee
Indefinite detention of people with cognitive and psychiatric impairment in Australia

BLAGG, Professor Harry, Professor of Criminology, University of Western Australia

BUSH, Ms Zoe, Former Research Assistant and Student, University of Western Australia

TULICH, Dr Tamara, Lecturer, University of Western Australia


CHAIR: Welcome. Thank you for coming. I will just check that you have all been given information on parliamentary privilege and the protection of witnesses and evidence.

Prof. Blagg : Yes.

CHAIR: We have your submission and would like to invite you to make an opening statement, and then we will ask you some questions.

Prof. Blagg : We thank the committee for the invitation to give oral evidence in support of our submission. Our submission is informed by research recently completed in the west Kimberley to develop diversionary alternatives for Indigenous youth with fetal alcohol spectrum disorders. Our research responded to specific concerns raised by community members and justice professionals in the west Kimberley about the number of young people with FASD who are vulnerable to enmeshment in the justice system, including through mentally impaired accused provisions, which enable persons with cognitive impairment who are found unfit to stand trial to be indefinitely detained in a custodial setting.

We found concerns that were voiced by members of the Aboriginal Legal Service, the magistracy, police prosecutors and other officials and community people in the Kimberley that in fact young people were being persuaded to plead guilty in order to avoid being considered unfit to stand trial and therefore indefinitely detained. That was the background to our study. We formed a partnership with three very well-known Aboriginal organisations in the west Kimberley to ensure that we had the full backing of the Indigenous community. These were Nindilingarri Cultural Health Services at Fitzroy Crossing, Garl Garl Walbu Drug and Alcohol Services in Derby and Life Without Barriers in Broome. We found that repeated negative contact with the criminal justice and related systems, institutionalisation and inadequate support increased the likelihood of young persons with FASD developing what we call secondary disabilities, such as substance abuse and mental health issues, which in turn further increased their susceptibility to contact with the criminal justice system, as both victims and offenders.

We support calls for reform of the provisions of the Criminal Law (Mentally Impaired Accused) Act 1996 that perpetuate the likelihood of negative contact in the form of indefinite detention in a custodial setting. In particular, we consider that the act should include separate provisions for young people, special hearings to test the evidence against an accused, a greater range of options if a court finds a person to be unfit to stand trial, and fixed or limited terms for custody orders. We further—and I think particularly—support calls for better diversionary programs that redirect young people with FASD out of the justice system at an early stage. However, on the basis of our research we feel that, to be effective, diversion for Indigenous young people with FASD must involve diversion into Indigenous owned, non-stigmatising, therapeutic alternatives, particularly in the emerging sphere of Indigenous on-country initiatives. So ours is what we call a country centric model.

We have found widespread support within Indigenous organisations, and increasingly within mainstream services, for culturally secure initiatives that draw on the authority of elders and involve the care and management of young people to community controlled processes, particularly on country. We see this kind of approach buttressed by new initiatives to established Aboriginal courts and better triage at the point of contact with the system. We think some kind of hybrid of the Neighbourhood Justice Centre model in Melbourne and the Aboriginal court would serve to increase the rate of diversion at the front end and also provide much needed services.

Even though we have enormous respect for people who are involved in the clinical dimension of this, particularly around diagnosis, we feel there is not a clinical solution. The solutions are social and better restricted to more early intervention. The approach that we have adopted acknowledges the strengths of Indigenous families and communities. Community initiatives may provide a culturally secure and appropriate environment for stabilising and normalising children with FASD that is not possible within mainstream structures. Immersion in on-country programs, therefore, may be vital to prevent the emergence of further secondary disabilities and perpetuating the problem. That is a very brief background.

CHAIR: Does anyone else want to add anything?

Dr Tulich : That was a joint opening statement.

Senator PRATT: You have spoken about the application of community controlled courts or neighbourhood community courts in Aboriginal and Indigenous contexts. I imagine though that these might be applicable to both those who are impaired cognitively and/or have mental health issues and other people who are standing trial. What is the legal framework, if you like? Do you differentiate in the process between someone coming before that court on the basis of that cognitive impairment or mental health issue and someone who does not have one? What is the legal relationship for coming before the jurisdiction of the court on both of those separate grounds?

Dr Tulich : Absolutely. So what we are looking at is a model that combines a neighbourhood justice centre and an Aboriginal court. The Neighbourhood Justice Centre was established in 2007 in Collingwood and it has the jurisdiction of a normal Magistrates Court. It is backed by its own legislation. So anyone within that neighbourhood who commits certain types of normal, run-of-the-mill offences—sexual offences are excluded from the jurisdiction—can come before the neighbourhood justice court. We would see the jurisdiction of a court in the Kimberley being the same as or equivalent to that.

Senator PRATT: How does that court differentiate between people who do and people do not have a cognitive impairment or a mental health issue?

Dr Tulich : What is unique about that court is that it has a number of different service providers that sit in court with the magistrate and they are able to provide an assessment of individuals who come before the courts. So the way in which we would foresee that court being better able to respond to people with mental illness or cognitive impairment is that the service providers are there to provide the court with a report on the spot of the issues that a person may face if the court or the lawyers believe that the person may have some form of impairment. So it short-circuits the process.

Senator PRATT: So it would be completely outside the CL(MIA) Act or not? We are talking about reform of the CL(MIA) Act but are we duplicating something alongside that? How does one relate to the other?

Dr Tulich : This is more justice innovation, so it is a change in the way the court works. The court would still apply the CL(MIA) Act as part of that. We advocate reform of the CL(MIA) Act, but should the CL(MIA) Act come up we hope that this would still enable diversion at earlier points in time than resulting in indefinite detention.

Prof. Blagg : We have some recommendations in respect of the act itself, which Tamara could probably outline better than me.

Dr Tulich : We have those recommendations in relation to the specific act, as well as recommendations on how we might facilitate diversion at the court stage, which is more through that combined model. In terms of our concerns with the act, I did not hear what the chief justice said but I have heard what he has said in the past and I am sure that we are in line with him. We support a special hearing mechanism to ensure that an accused person has an opportunity for acquittal. We support limited detention, whether it is in the form of limiting terms that are statutorily prescribed, like they have in New Zealand, or whether it is the courts, like on the east coast, who have the ability to say what the best estimate is of the sentence that we would have given someone and then go with that best estimate. We also support the introduction of child-specific provisions. In Victoria they have a fabulous regime, which was set up in 2014, which has specific provisions for young people. These are focused on support, treatment and guidance and they allow unconditional release. They also allow two types of supervision orders: a custodial supervision order and non-custodial supervision order. All of the orders must be directed at that child receiving the care, treatment and assistance.

Senator PRATT: Could you have both those versions within the kind of court that you are talking about?

Dr Tulich : Absolutely. We could see the magistrate as having the normal powers that a magistrate would have but having these extra services within the court and also having elders sitting on the court assisting the magistrate.

Prof. Blagg : In answer to a question that was raised earlier with one of the previous speakers about who owns this and takes responsibility for the child, we think, in the case of young people with FASD or an intellectual disability of some kind from an Indigenous community, then it should be that community. That is why we favour a response where we have Aboriginal people sitting in the courts and we have Aboriginal service providers providing the triage at the first point of contract. We call it the external scaffolding around the child. I think Heather Douglas talks about the external brain.

We think these are the key dimensions of being able to stabilise and normalise a child. In terms of the diversionary options, we think that we need to make better use of pre-court diversion. We have the juvenile justice teams in Western Australia. They are our flagship diversionary model which do a form of restorative justice. We have always felt very strongly that we have not made enough use of that vehicle as a means of having early identification of young people where there is a concern about intellectual incapacity and building in support mechanisms at that stage before it leads into court and detention, which we believe is getting too late, often. We think that we need to review the Young Offenders Act in relation to this use of juvenile justice teams, have Aboriginal people working as paid people on those teams and have much more direct contact with local psychologists and such. That kind of idea has found a lot of support in the Kimberley, where we fed back our model. I think there is a lot of support within the Aboriginal communities for that kind of approach.

Dr Tulich : Just to add a further point to what Senator Pratt asked, with the neighbourhood justice model you do not need to plead guilty for the court to enliven its jurisdiction and for the support services. That is what is different in that model to a drug court, which you may have already alluded to.

Prof. Blagg : Yes.

Senator DODSON: I was just going to follow up on your mobile 'needs focused' court. I think that is how you describe it in your submission. What sort of resourcing is there to effect this? A lot of these things seem to be resource dominated, and if you have not got the money then it is not going to happen. It could be the best idea in the world. This is another good idea, with good research around it, but what is the business case for it?

Prof. Blagg : We think a lot of it can be done already within some existing resources. We already have a mobile court in the family circuit in the West Kimberley where the magistrate travels around. They are often accompanied by not only the police prosecutor but also people from the legal services and other service providers. That is already a practice. We think that that could be supplemented by a range of other players and then local agencies taken on when they go to a place more rationally than they currently are doing.

Senator DODSON: I understand that. I just note in the submission that there is an emphasis on the defence focusing on resolving a young person's underlying issues. That is a pretty big task, it seems to me, if they are coming out of poverty and a whole range of other factors that give rise to this—alcohol, drugs et cetera. In a remote part of the country, how does this get done? That is what I am really asking. It is a good idea and it may work in a metropolitan area, as you say. How does it work in a remote or regional setting, where the defence is already stretched to the limits and you are now asking it to focus on the underlying issues, I suppose, that give rise to all of this?

Prof. Blagg : I think we would have to invest quite significantly at this early end, and I think that will save money. I know you have already probably spoken about a justice investment approach, where we gradually de-invest from that very expensive institutional end and begin to put those resources into early intervention. That is why we have some concerns, though we respect them enormously, about the approach of doing diagnosis in Banksia Hill. I think we are already putting too much focus on that point of the system and we really need to start to resource more the early end. Criminology 101 always says that the more that you invest at the early stage, the less you need to lock people up down the track. I think this is a case of that kind of an approach.

Senator DODSON: I entirely agree with you. I am just searching for the political will to address the problems here.

Prof. Blagg : It is sitting here.

CHAIR: No pressure!

Senator REYNOLDS: Following on from Senator Dodson's questions, I think we all would agree with you that the earlier the intervention, the better. For young Aboriginal children especially who eventually are diagnosed with FASD or perhaps even are underdiagnosed, at what age do they start engaging with the criminal justice system generally, and where do you see that first lot of diversion should really be happening? Obviously it would be in the community, but at what sort of age should it happen?

Dr Tulich : I do not know at what age they are coming in contact with the justice system; I would say quite young, but I do not have any statistics behind that. What we have looked at as well is trying to bolster police cautioning and police diversion. That would be the first point of contact. When someone does come into contact with police, we would like to see a turning point or a diversion. We are hoping that getting to the court would happen far later on, but, with community justice groups and other initiatives, we think we can strengthen the programs available at that first point contact so that police are content to divert young people away from the justice system.

Prof. Blagg : We have cases of kids coming to court at 10 and 11 years old. That is something that I think is highly problematic—between 10 and 12 or 13 years old. I think for many of those children we need more receptive, more sophisticated diversion at that stage, involving DCP, involving the school and making certain that there are some structures in place in the community to look after those kids.

Senator REYNOLDS: This morning the issue of legal representatives having this horrible dilemma when it comes to their advice has come up repeatedly. We have had very clear evidence today that legal counsel is recommending to its clients that they plead guilty rather than go into indefinite detention, which clearly means that there are a lot of people who are incarcerated who should not be there because they are not of sound mind—it was not sound mind.

CHAIR: They had cognitive impairment.

Senator REYNOLDS: Yes, cognitive impairment. If you take that situation, when you get somebody who is as young as 10, 11 or 12 who has got fetal alcohol syndrome, and obviously they are not old enough to fully understand their legal situation, and then you have got somebody representing them who is inclined to keep them out of indefinite detention, you can imagine that would then compound their life cycle in the criminal justice system. Have you got any observations on that?

Ms Bush : Absolutely. Harry and I were doing research work around Indigenous youth justice in the West Kimberley before this project, and what initiated this project was this very concern—the number of people from Aboriginal Legal Service expressing a concern that they were being placed in this situation on a not irregular basis. I think there is particular concern with the mandatory three-strike laws that have come into effect, which mean that, if a kid gets charged three times for an offence and pleads guilty in order to avoid these provisions and avoid raising 'unfitness to stand trial', they can find themselves going into prison on a mandatory prison term. I think there was particular concern around that cycle of incarceration that can begin from the age of 10 or 11. It is not rare to begin from the age of 10 or 11, where they are pleading guilty just to avoid facing 'unfit to stand trial'. If you do that three times, you find yourself in prison, and that whole process has been triggered.

Senator REYNOLDS: And clearly the young kids would not get not only the standard health but also the mental health or other special education needs, additional education requirements, so presumably they would not be getting any of that because they were not diagnosed with an impairment.

Prof. Blagg : That is right. We found that in talking to people in the disability sector too in the West Kimberley. These young people just were not coming to their attention, because they were being rerouted through an institutional process rather than something about community care. This is a big problem. These children are being labelled and institutionalised at a very early age, when there could be a therapeutical alternative in the community. We need a multiagency approach to deal with that.

Senator REYNOLDS: Just to wrap up then, to summarise: if I have understood your testimony here, there are really three elements to moving forward, and they are not necessarily issues of money per se. It is having somebody who is accountable or who has got the authority to do wraparound services in an early community-based setting.

Prof. Blagg : Yes. That is it. But we think the Indigenous community should provide the centre, the focus, of that support.

CHAIR: I was just quickly trying to remind myself about how many young people have been found to be unfit to plead and are currently in indefinite detention. Do we know?

Dr Tulich : That is an excellent question, which we asked Taryn outside. Do you know the answer to that? No. We are unaware of the exact number at the moment. We are hoping we can find out. But one of the problems is that the numbers may be slightly skewed because of the issue with lawyers pleading their clients' age.

CHAIR: That is why I am just wondering, because I suspect—it is a supposition based on the information we have been given—that there would be a lot that would be found unfit if their lawyers were not trying to avoid indefinite detention.

Dr Tulich : What we know from the first population based study that was done in Australia, in Fitzroy Crossing in 2014, is that 12 out of 100 children are said to have FAS, fetal alcohol syndrome, or FAE, fetal alcohol effects, so we are looking at high numbers.

CHAIR: Thank you very much for your evidence today. It is very much appreciated.