Indefinite Detention Meets Colonial Dispossession

Introduction

This article employs a postcolonial perspective to explore issues surrounding justice intervention in the lives of Indigenous children and young people with foetal alcohol spectrum disorders (FASD) in the Kimberley region of Western Australia and maps out a reform agenda based on what we call a ‘decolonizing’ alternative to the mainstream justice process. It is informed by an action research project undertaken in three Indigenous communities in the West Kimberley region of Western Australia, intended to develop diversionary pathways for Indigenous young people with FASD at risk of enmeshment in the justice system, in partnership with three Indigenous community owned and managed services.

FASD refers to a collection of disorders resulting from exposure to alcohol in utero, including foetal alcohol syndrome (FAS), partial FAS (pFAS) and alcohol-related neurodevelopmental disorder. People with FASD may experience a range of cognitive, social and behavioural difficulties, including difficulties with memory, impulse control and linking actions to consequences (Douglas, 2010). On the face of it, FASD appears to be a ‘disability’ or ‘public health’ issue, neutral of political context. We suggest otherwise and demonstrate how FASD intersects with mechanisms of colonial control to expand the carceral net and further entrench Indigenous people in the settler justice system. Some Indigenous youth with FASD are being managed within a legal and carceral mesh of controls that perpetuate colonial era patterns of institutionalization of the Indigenous other, while others are denied support for their condition altogether due to a lack of appropriate services in many Indigenous communities. This dichotomy is typical of life for many in the post-colony, to be either warehoused in institutions or systemically neglected by a settler colonial system that still cannot view them as ‘part of the public’ (Raftery, 2006).

The article begins with a discussion of the current rate of contact between Indigenous youth and the justice system in Western Australia, arguing that the massive disparity between Indigenous and non-Indigenous rates of contact can be productively viewed through a postcolonial lens. We then map out the current state of knowledge regarding FASD and describe the ways one particular Aboriginal community (Fitzroy Crossing in the remote Kimberley region of Western Australia) has responded to the problem. We then discuss the, largely negative, impact of current legislation on people with FASD and, finally, map out a reform agenda informed by what we call a decolonizing approach, by which we mean an approach that increasingly transfers power from the settler mainstream to Indigenous structures and processes.

Our fundamental premise is that the question of FASD and Indigenous youth in Western Australia cannot be uncoupled from the history of colonial settlement and the multiple traumas resulting from dispossession, nor can solving the problem be isolated from the broader task of decolonizing relationships between Indigenous people and the settler mainstream. Our proposed reform agenda takes into account a number of innovatory initiatives already in existence, from diversion at the point of first contact with the justice system through to court innovations such as Aboriginal courts and Neighbourhood Justice Centres. However, our priority is to employ these systems, not as ends in themselves, but as points of ‘cultural interface’ (Nakarta, 2002: 5) with emerging Indigenous owned and place-based practices and philosophies. The decolonizing process involves expanding the role of Indigenous owned and place-based processes and services, which are working from a position of cultural security and are embedded in Indigenous forms of knowledge. However, there are some mainstream reform practices capable, we suggest, of bridging the divide between the Indigenous and non-Indigenous domains.

The Research Process

The research process involved a mix of comparative legal analysis (comparing Western Australia with similar jurisdictions in Australia and overseas); a review of the extant policy and practice literature around FASD; an examination of the literature on the Western Australian justice system in relation to Indigenous youth, including statistics on over-imprisonment; and a qualitative research phase, involving a range of place-based interviews and focus groups with community members, justice professionals and key individuals and groups in the West Kimberley region (Broome, Fitzroy Crossing and Derby). This place-based phase was buttressed by interviews, focus groups and roundtable events in metropolitan Perth.

We were influenced by the voices of critical Indigenous scholars on how to construct a culturally secure ‘research engagement space’ with Indigenous communities; in particular, we held in mind Maori scholar Linda Tuhiwai Smith’s (1999: 24) assertion that ‘(white) research is linked to colonialism and oppression and must be decolonized’. We were also guided by the Kimberley Land Council’s Guidelines for Researchers that place an expectation that researchers ‘ensure that Kimberley Aboriginal people benefit from research conducted on their land and in their communities’ (Kimberley Land Council, 2014). We, therefore, instituted a decolonizing dynamic in the research by nesting the process in three prominent Indigenous led and managed agencies: Nindilingarri Cultural Health Services in Fitzroy Crossing; Garl Garl Walbu Alcohol Association Aboriginal Corporation in Derby and Life Without Barriers in Broome. These organisations were identified on the basis of existing relationships of trust with these bodies, formed over several decades of research in the Kimberley by Blagg, and because each was engaged in work that brought them into contact with youths and families where FASD was an issue. These organisations acted as a focal point for our place-based research. They assisted us in planning the research process, generously opened their networks up to us in their localities, and allowed us to use their facilities to hold community meetings. Dialogue with our partners ensured we remained conscious of the interests of local communities and the need for a paradigm shift in the way ‘services’ of all kinds are delivered to Indigenous communities, and they were instrumental in framing an ‘holistic’ approach to intervention that was led by community owned, rather than more government owned, structures and processes. It was largely due to their influence that we began to understand the role of intergenerational trauma in creating the conditions for high rates of FASD.

We also ensured the research received the endorsement of ‘Cultural Bosses’ in the Kimberley by sitting down with Elders from Kimberley Aboriginal Law and Culture Centre in Fitzroy Crossing, which represents the traditional owners and cultural bosses from the 30 language groups across the Kimberley. The Elders were very concerned about the damage alcohol use was having on young people and wanted to see greater recognition of Aboriginal law as an alternative to the mainstream justice system. Their demand for greater use of ‘on-country’ alternatives became a central pillar of our proposed diversionary model. The research process was split into three loose phases. The first phase involved connection to ‘country’, in which researchers held meetings and discussions with partner Indigenous organisations to agree on the scope of the research and define the benefits for the community. The second involved focus groups and individual interviews with a diversity of government, non-government and community owned organisations in the three sites and in metropolitan Perth. The third involved feeding back initial findings from the interviews, as well as suggestions for legal reform, and a draft ‘country-centric’ diversionary model for comment and review at a number of forums in the Kimberley. The report was modified and rewritten to reflect criticisms as well as suggestions for improvements from these forums.

In terms of the research population, the Kimberley interviews involved representatives from the Aboriginal Legal Service; Legal Aid; Police Prosecution Services; Drug and Alcohol Rehabilitation Services; Mental Health and Aboriginal Health Services; Aboriginal Night Patrols and Sobering up Services; Youth Street Workers; Aboriginal Family Violence workers; Men’s Outreach Services and Women’s Refuges; Senior Police Officers and Officers in Charge of the Police stations in the three sites. In all, we estimate that we interviewed in excess of 60 people from these various organisations, as well as 15 workers from the three partner organisations. Focus groups with community members were non-intrusive and based on a ‘two-way’ exchange, often referred to as a ‘yarning’ style, rather than the traditional Western research practice of ‘intensive direct questioning’.

Two researchers were also able to travel with the West Kimberley magistrate on the West Kimberley circuit and observe the court at work: this also yielded opportunities to talk to legal officers and court users. The Perth consultations involved engagement with representatives from mainstream agencies, police and the judiciary. We hosted a ‘roundtable’ at the University of Western Australia that attracted 35 attendees, including the President of the Children’s Court and senior personnel from the Police and Departments of Corrective Services and the Attorney General, as well as representatives from Aboriginal organisations. Over the lifetime of the research, we were able to use the connections made at this and other forums, workshops and conferences in Western Australia and nationally as a sounding board for our emerging ideas.

Talking About Diversion

The need to divert Indigenous youth with FASD from contact with the justice system has been acknowledged by a number of official sources. The Australian Parliament’s House of Representative’s Standing Committee on Indigenous Affairs (2015: para 5.84) recently reported that ‘[t]here is…a great need for diversion programs which redirect individuals [with FASD] who come in contact with the criminal justice system’. The Western Australian Inspector of Custodial Services (2014: 10) has recommended ‘community based alternatives to custody orders for people who are found unfit to stand trial but require some degree of supervision’. Diversionary alternatives are sorely needed. However, our research raises questions about the relevance of many mainstream diversionary mechanisms to this task, particularly given the failure of existing community-based sanctions to stem the floodtide of Indigenous over-incarceration in Western Australia. FASD amplifies the chances of Indigenous youth being caught up in the justice system in Western Australia, including indefinite detention in prison if found unfit to stand trial. A fresh diversionary paradigm is required. Senior police officers agreed that the current system fails Indigenous youth; for some, greater awareness of FASD made them re-evaluate previous cases they had dealt with. The Officer in Charge in one of our sites, with a long history of working in Aboriginal communities (he was also highly regarded by our partner organisations), told us:

Learning about FASD by attending this forum made me remember a kid in Beagle Bay (on the Dampier Peninsula). He kept getting in trouble, his family could not control him, but he was the nicest kid you could meet….I used to keep asking ‘why did you do that?’ (break into the school, steal from the store, etc.). I used to say ‘when will you ever learn?’. And that’s the thing, he couldn’t learn could he?

Our consultations with Indigenous organisations, government agencies and the judiciary focused extensively on two key dimensions of the FASD issue: indefinite detention under Western Australia’s Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the CLMIA Act) and the need for fresh diversionary alternatives, beginning at the first point of contact with the system. There was considerable attention given to the ‘failure’ of existing legislation and policy to reduce the over-imprisonment of Indigenous young people generally, not just those with FASD.

The Settler Youth Justice System: A Punitive Surge and Hyper-incarceration in Western Australia

Western Australia maintains a reputation as the ‘deep south’ of the Australian correctional landscape. Indigenous youth in Western Australia are 40 times more likely than their non-Indigenous peers to be in detention, which is the highest rate of overrepresentation of Indigenous young people in detention in Australia (Amnesty International, 2015). Western Australia has the second highest overall rate of youth detention in the country (behind the Northern Territory), detaining young people at close to twice the national average (Office of the Inspector of Custodial Services, 2013: 120). On the most recent available data, Indigenous youth made up 77% of all youth in detention in Western Australia (92 of 120) and 59% of those being managed in the community (579 of 974) (Department of Corrective Service, 2015a, 2015b). They constitute roughly 6% of the relevant population (Australian Institute of Health and Welfare, 2014). These staggering rates are, in large part, a function of changes to the youth justice system in the latter part of the last century.

Western Australia embraced ‘punitive excess’ (Cunneen et al., 2013) with enthusiasm in the early 1990s, introducing a range of tough on crime measures, including mandatory sentencing for juveniles and the assimilation of youth justice into the adult correctional system. The new system blurred and minimized, where it did not totally abolish, the boundaries between the youth and adult estates. It absorbed youth justice into the adult correctional bureaucracy and managed youth justice on correctional lines with a greater emphasis on risk assessment and management, offender accountability and strict policing of court orders (Omaji, 2003).

This period saw the introduction of youth-specific legislation (the Young Offenders Act 1994 (WA), hereafter the YOA). The YOA enshrined some children’s rights in statute and is prefaced by principles supportive of diversion, such as detention as a sanction of ‘last resort’ (section 7(h)). Nonetheless, the Act reflected the mood of the time by enshrining ‘punishment’ as a legitimate goal of the youth justice system (section 7(j)). At the same time, a range of broader ‘reforms’ to justice legislation and policing practices tightened the carceral screw by introducing stricter parole and bail conditions and mandatory sentencing for property crime (for children as well as adults), which was buttressed by a range of ‘zero tolerance’ policing practices (move on orders, antisocial behaviour orders, youth curfews and the like) that targeted Indigenous youth in white public space (Cunneen and White, 2007; Morgan, Blagg and Williams, 2001).

The rising proportion of Indigenous youth in detention is primarily the result of a drop in the non-Indigenous youth detention population, who have been the chief beneficiaries of diversion by the police, through cautioning and family conferencing at the ‘front end’ of the justice system. Roughly, 50% of youths who would have gone to court before the YOA are now being diverted (Blagg, 2016). Diversionary strategies established under the YOA, such as the Juvenile Justice Teams (joint police and youth corrections teams who divert cases considered too serious to caution, but not serious enough for court, using elements of restorative justice) are clearly ‘working’; they are just not working for Indigenous youth. Furthermore, recidivism rates are high, with around 90% of Indigenous youth returning to custody within 2 years of release (Amnesty International, 2015).

An Indigenous Youth Detention System

Geographic remoteness is also a key factor. On 30 June 2013, 41.2% of all young people in detention in Western Australia were from regional and remote areas, and 84% of young people from regional and remote areas in detention over the past 5 years have been Indigenous, the majority from the Kimberley region where our study was based (Commissioner for Children and Young People, 2014: Table 9.25). Youths from the Kimberley are more likely than youths from other parts of the State to be incarcerated in Western Australia’s mandatory sentencing regime (Amnesty International, 2015). Further, on average, around 40% of young people in detention in Western Australia are unsentenced (Department of Corrective Services, 2016: 8): Indigenous youth represent 70% of those to whom bail has been refused and have been remanded in detention awaiting trial (Australian Institute of Health and Welfare, 2014: Tables s 12 and s 18). The Bail Act 1982 (WA) stipulates that a child 17 years of age or under can only be released on bail if a ‘responsible person’ signs a bail undertaking (Sch 1 Pt C cl 2(2)(b)). Western Australia is the only state where this requirement is in place.

The youth justice system in Western Australia is in real terms, if not in name, an Indigenous youth detention system. This punitive surge intensified already existing patterns of systemic racism that worked to criminalize Indigenous people (Cunneen et al., 2013). Unlike the ‘punitive turn’ (Feeley and Simon, 1992) in Western Europe and the United States, which constituted a break or rupture with an era of ‘penal welfarism’ (Garland, 2001), the surge represented a continuation of apartheid practices a fortiori. Indigenous families had never been the beneficiaries of the kinds of state services commonplace in the white mainstream: ‘welfare’, for Indigenous people, usually meant forced institutionalization and the breakup of families (Haebich, 2000). The new era of ‘governing through crime’ (Simon, 2007) provided a new set of disciplinary mechanisms in new regimes but it targeted the same dispossessed Indigenous population. Detention became the new site for warehousing the dispossessed, previously the responsibility of missions, orphanages and care homes. Space precludes a full exegesis of the trajectory of punishment and incarceration in Western Australia. Yawuru man, Patrick Dodson’s epic study of the ‘underlying issues’ in Western Australia (Dodson, 1991), a good part of which covers the history of colonial settlement in the Kimberley, suggests that mass incarceration in white prisons represented a new phase in the control of dispossessed Aboriginal people. There was considerable fluidity between police lockups, feeding stations and sites of enforced labour (cattle stations, the pearling industry and domestic servitude). The latter fell from use in the 1960s and 1970s as Aboriginal people were forced off cattle stations because owners would not pay wages, as demanded under new Commonwealth legislation, and religious missions began to close. Towns such as Fitzroy Crossing swelled to become ‘dumping grounds’ for unwanted Aboriginal families and clan groups. Dodson (1991: 174) observes:

Arriving on the fringe of various townsites, brought with it a lack of work, isolation from country, the introduction of social welfare entitlements, and citizenship rights which, in turn, served to increase surveillance and subjugation. The imperative for most non-Aboriginal people to police every Aboriginal person, created a cauldron of chaos, misery, loss of esteem and pride. It accelerated destabilisation and dislocation for Aboriginal people.

The collateral damage of colonial dispossession is manifested in intergenerational trauma, family violence, alcohol-related harms and youth suicide, creating what Atkinson (2015; see also Atkinson 2001, 2002) describes as the ‘trauma to prison pipeline’. Our research partners in the Kimberley placed considerable emphasis on the role of intergenerational trauma in creating the conditions for FASD, as did other community owned organisations. One worker from the Marninwarntikura Women’s Resource Centre in Fitzroy Crossing, for example, told us that:

The women we see…who repeatedly come to the Safe House…are from homes where is intergenerational violence, intergenerational trauma. Their mothers…now the grandmothers who do the child care…faced the same. Children grow up seeing violence and feeling fear. People drink to dull the pain. Young women drink now more than ever. Then they have the grog-children (children with FASD).

FASD

FASD is a non-diagnostic umbrella term encompassing a spectrum of disorders caused by prenatal alcohol exposure. The ‘primary’ effects of FASD are the direct result of such exposure and include the damage that may be caused to the frontal lobe of the foetal brain, resulting in cognitive deficiencies such as impairments in learning, attention, memory, sensory perception and language (Kulaga, 2006:1). Damage may also be caused to the limbic system, risking impairments in social judgment, impulse control and emotional regulation (Chasnoff et al., 2010; Douglas, 2010; Rasmussen, 2005). Difficulty with abstract reasoning often manifests as a failure to learn from experience and link consequences with actions (Douglas, 2010: 223). People with FASD may also experience difficulty seeing ‘the big picture’, in the sense of imagining a future, thinking about others, explaining actions or restraining impulses (Douglas, 2010). As these primary effects of FASD may affect a person’s ability to engage in school and employment (Douglas, 2010: 225), research indicates that 60% of people with FASD have disrupted or curtailed school attendance that may exacerbate existing cognitive deficiencies (Burd et al., 2003; Douglas, 2010: 224).

Fitzroy Crossing: Indigenous Women Take Charge

The Fitzroy Valley sits within the Kimberley region of Western Australia. Roughly 90% of residents in the Fitzroy Valley are Indigenous, most belonging to one of four language groups – Bunuba, Gooniyandi, Walmajarri and Wangkatjungk, spanning across approximately 40 communities and outstations (Marninwarntikura Fitzroy Women’s Resource Centre; Marra Worra Worra Aboriginal Corporation; and Nindilingarri Cultural Health Services, 2009). The town of Fitzroy Crossing is the regional hub of the Valley. It has been reported that in 2007, ‘the communities of the Fitzroy Valley were in crisis’ (Aboriginal and Torres Strait Islander Social Justice Commissioner, 2010: 69), with health professionals commenting on the devastating impacts of alcohol abuse within the community. A coronial inquiry into the high rate of suicide in the area found that there had been a 100% increase in the number of self-harm deaths between 2005 and 2006 and that the rate of self-harm deaths in the Fitzroy Valley was exceptionally high (Hope, 2008).

According to the Marninwarntikura Fitzroy Women’s Resource Centre, the Fitzroy Valley was ‘disastrous…and it is in a state of dysfunction’ (Marninwarntikura Fitzroy Women’s Resource Centre; Marra Worra Worra Aboriginal Corporation and Nindilingarri Cultural Health Services, 2009: 5). In 2007, Indigenous community members of Fitzroy Valley undertook an initiative to curb alcohol abuse in their community because of the high number of alcohol and drug-related suicides in the Fitzroy Valley, extensive family violence and the increase in child protection issues associated with FAS (Aboriginal and Torres Strait Islander Social Justice Commissioner, 2010: 72). As a result of the community’s lobbying, the Director of Liquor Licensing imposed an initial 6 month restriction on the sale of packaged liquor in the area. This restriction was then extended indefinitely (Kinnane et al., 2010). One of the main reasons for this community-led action was the impact that alcohol was having on unborn children.

Indigenous Australians have been identified as particularly affected by FASD. While Australian data is limited, existing Australian estimates of FAS in Indigenous populations have ranged from 2.76 to 4.7 per 100 children (Standing Committee on Social Policy and Legal Affairs, 2012: para 2.92), with rates in non-Indigenous populations ranging from 0.14 to 1.7 per 100 children (Allen et al., 2007: 64; Bower et al., 2000; Harris and Bucens, 2003: 530–531). In 2015, Nindilingarri Cultural Health Services and Marninwarntikura Fitzroy Women’s Resource Centre formed a partnership with the George Institute for Global Health and The University of Sydney Medical School to conduct the first population-based Australian study of FASD prevalence, known as The Lililwan Project. The study reported rates of FAS/pFAS of 12 per 100 children. This is the highest reported prevalence of FAS/pFAS in Australia and similar to rates reported in ‘high-risk’ populations internationally (Fitzpatrick et al., 2015: 450). These findings reinforced demands for alcohol restrictions in the town. Overall, the alcohol restrictions were said to have created a ‘transformative change in their region and lifted their communities out of chaos and despair’, with a significant reduction in alcohol-related injuries being reported to the hospital and police (Aboriginal and Torres Strait Islander Social Justice Commissioner, 2010: 67; Kinnane et al., 2010).

The Widening Gyre

The range of cognitive, social and behavioural difficulties a person with FASD may experience can render them more susceptible to contact with the criminal justice system – as victims or offenders – and pose challenges at each stage of the criminal justice process. Difficulties with memory and suggestibility mean that a person with FASD is more likely to agree with propositions put to them and may therefore be disadvantaged in police interviews (Education and Health Standing Committee, 2012: 75). Difficulties with memory may make it harder for people with FASD to explain their behaviour, to instruct lawyers and to give evidence in court (Education and Health Standing Committee, 2012: 75). Difficulties with memory and linking actions to consequences may mean that people with FASD are unable, rather than wilfully unwilling, to comply with court orders (Douglas, 2010: 228; Education and Health Standing Committee, 2012: 76).

Research undertaken in the United States suggests that over half of persons with FASD will interact with the criminal justice system: around 60% will be arrested, charged or convicted of a criminal offence and about half will have spent time in juvenile detention, prison, inpatient treatment or mental health detention (Streissguth et al., 2004: 238). In relation to young people, Canadian research indicates that young people with FASD are 19 times more likely to be arrested than their peers (Brown et al., 2015: 144). These statistics are particularly troubling in light of the reported prevalence of FASD among Indigenous youth in Western Australia and the worsening over-incarceration of Indigenous youth in that State. It is unsurprising, then, that Indigenous community members and justice professionals are worried that increasing numbers of Indigenous youth are displaying symptoms of FASD and becoming enmeshed in the criminal justice system.

It is not simply that young people with FASD are more likely to interact with the justice system. An inadequate criminal justice response can increase the likelihood of people with FASD developing secondary impairments or disabilities, such as substance abuse, which, in turn, increases their susceptibility to further contact with the criminal justice system (either as victims or offenders) (Douglas, 2010: 225; Koren, 2004: 4). Secondary disabilities are a cluster of social and psychological problems that develop as a result of FASD’s primary effects being exacerbated by repeated negative contact with the criminal justice and related systems, inadequate support and misdiagnosis, existence on the fringes of society, racism and institutionalization (Streissguth and Kanter, 1997). Research indicates that over 90% of people with FASD will be diagnosed with a psychiatric disorder during their lifetime (O’Malley, 2007: 11), with 30% developing substance abuse problems (Boland et al., 1998: para 2).

Importantly, however, secondary impairments can be prevented, or the impact reduced, through appropriate interventions: by improving the responsiveness of the justice system and support services to young people with FASD. It is crucial that the identification of FASD does not itself, however, become the source of greater harm (Roach and Bailey, 2009: 5). Criminological research warns that even well-intentioned intervention can have the unintended consequence of widening the carceral net by drawing young people deeper into judicial and correctional systems in order for them to receive treatment and support (see e.g. Cunneen and White, 2007; Goldson, 2013). There is a danger of this occurring in Western Australia. Researchers from the Telethon Kids Institute (WA) have been funded to screen young people for FASD in the Banksia Hill Juvenile Detention Centre in Perth and provide support services. This is a well-intentioned move designed to establish an evidence base, but potentially ‘net-widening’ in its impact. Given the almost complete lack of community support services, there is the possibility that youth justice workers, prosecutory bodies and magistrates will come to see detention as a route to stabilization, increasing the already high rates of Indigenous youth detention. Currently, however, the greatest danger is that a diagnosis of FASD will lead to a child being detained indefinitely.

Indefinite Detention Under the CLMIA Act: ‘Bad Law’ or ‘Too Bad, Law’?

In Western Australia, a diagnosis of FASD can trigger indefinite detention under the CLMIA Act if a young person is found unfit to stand trial for a criminal offence that carries a term of imprisonment. The Act does not contain special procedures for young people, in line with the prevailing orthodoxy of the time, discussed earlier, that diluted the boundaries between the juvenile and adult justice systems. If a court finds a young person is unfit, and ‘will not become mentally fit to stand trial within 6 months’, the court has two options: release the accused or make a custody order (where imprisonment is a sentencing option) (sections 16(2)(a) and 19(1)(a)). It is for this reason that the regime has been criticized by Reynolds J for allowing only ‘one extreme or the other’ (The State of Western Australia v. BB (a child) [2015] WACC 2, 16 para 55).

Where a court makes a custody order, a young person with FASD can only be detained in a juvenile detention centre (or prisons when adults) or a declared place designed to house and support accused persons with cognitive impairments who are detained under the CLMIA Act (section 24(1)). The young person cannot be detained in a mental health facility unless they have a treatable mental illness (section 24(2)). Western Australia’s only declared place for the purposes of the CLMIA Act, the Bennett Brook Disability Justice Centre, opened in Perth in August 2015, and is a welcome development. However, the Centre has less than 10 beds and does not cater for children under 16 years of age (Disability Services Commission, 2016).

Crucially, a custody order is of unlimited duration. Contrary to the regimes operating in South Australia, the Australian Capital Territory and New South Wales, where a person is subject to a limiting term, in Western Australia a person will be detained under a custody order until released by an order of the governor (in practice, on the recommendation of the Mentally Impaired Accused Review Board (the Board)) (section 24). The only protection against an accused’s indefinite detention is the Board’s reporting requirements under sections 33 and 34 of the CLMIA Act. On the advice of the Board and minister, the governor may order an accused’s conditional or unconditional release (section 35). Consequently, the effect of a custody order for a person with FASD is essentially ‘indefinite imprisonment without significant prospect of treatment of the conditions which have made…[the accused] unfit to plead or which might have precipitated the offending which the State alleges’ (State of Western Australia v. Tax [2010] WASC 208, para 19 (Martin CJ).

The CLMIA Act places lawyers representing unfit young persons with FASD in a precarious position. Lawyers are faced with the dilemma of raising unfitness, which could result in their client being indefinitely detained without trial, or advising their client to plead guilty to the charged offences, as any custodial sentence imposed will be limited and shorter (Australian Human Rights Commission, 2013; The State of Western Australia v. BB (a child) [2015] WACC 2, 16 paras 55–56 (Reynolds J)). This is only further complicated by mandatory sentencing provisions in Western Australia, introduced in the climate of punitive excess that engulfed Western Australia in the 1990s. The President of the Western Australian Children’s Court, Reynolds J, articulated the problem in The State of Western Australia v. BB (a child) [2015] WACC 2, 16-17:

The legislation in its current form puts undue pressure on legal advisers to go down the path of arguing that an accused is fit to stand trial in order to avoid exposing the accused to the possibility of an indefinite custody order.

Unlike most Australian jurisdictions, the CLMIA Act regime does not involve a special hearing as to guilt or innocence. ¹ Special hearings were introduced in many Australian jurisdictions because unfit accused did not otherwise have a trial or ‘opportunity for acquittal’ (NSW Law Reform Commission, 2013: 141). In Australian jurisdictions that have special hearings, an unfit accused is only subject to the coercive provisions of the regime if he or she is found to have engaged in the conduct constituting the offence (often referred to as a qualified finding of guilt). The case of Marlon Noble, an Indigenous man imprisoned for 10 years upon a finding of unfitness in Western Australia, illustrates the danger of this approach. The Australian Law Reform Commission reports (2014, fn. 82):

Marlon Noble was charged in 2001 with sexual assault offences that were never proven. A decade after he was charged, the allegations were clearly shown to have no substance. Marlon spent most of that decade in prison, because he was found unfit to stand trial because of his intellectual disability.

It is not only the making of the order that is problematic. A young person may be remanded in custody while his or her fitness is investigated. In The State of Western Australia v. BB (a child) [2015] WACC 2, Reynolds J (at para 82) lamented the length of time the young person spent on remand – 30 December 2013 to 4 April 2014 – in order for fitness to be investigated: ‘[i]t is a long time for a youngs person and particularly for a young Aboriginal person being away from country and family and suffering from mental impairment’. This is an unsatisfactory outcome for a regime designed to avoid injustice and unfairness to unfit accused.

The CLMIA Act has been criticized for ‘creating a paternalistic and archaic regime of exclusion, punishment and discrimination’ (Mental Health Law Centre (WA) Inc, 2013). Senior policymakers and jurists in Perth told us that it was badly drafted and constituted bad law. This may be the case, but the ‘badness’ may have less to do with shoddy drafting than a malign indifference to the needs of Indigenous young people – as they would constitute the majority of young people who come within the ambit of the Act. It was drafted by the same bureaucratic regime responsible for drafting new punitive sanctions in Western Australia in the mid-1990s, such as mandatory sentencing, which also do not differentiate between adults and children. Not surprisingly, therefore, the legislation does little to protect or acknowledge the special needs of children and the necessity of having a separate regime for them.

Viewed through a postcolonial lens, the willingness to employ indefinite detention to manage Indigenous disability demonstrates continuity with past practices of warehousing Indigenous children in institutions of forced confinement. It would be understandable in these circumstances for critical scholars and activists to demand the introduction of youth justice reforms based on the progressive trinity of children’s rights, restorative justice and community-based alternatives. Viewed through a postcolonial lens, however, even the ‘soft’ (rehabilitative) end of the justice spectrum is problematic because it still rests on Eurocentric notions of reintegration into mainstream norms, values and beliefs and a ‘normal’ life in western modernity. These avenues are closed off to the majority of Indigenous youth in the Kimberley, most of whom are unlikely to achieve a ‘stake in conformity’. This can be linked to the devastating impact of settler colonialism, the consequences of which continue to shape relationships between colonizer and colonized. These consequences are best understood from within a postcolonial framework.

Postcolonial Theory and the Settler State

‘Postcolonial’ does not refer to the world after colonialism has ended (it hasn’t), rather it refers to the diversity of cultural, social and political contestations and crises brought into being by colonial projects (Moore-Gilbert, 1997). Postcolonial theory has been concerned with the ways colonial power creates and sustains forms of social, cultural and psychological practice that survive the formal colonial era. These practices are minutely interwoven into the fabric of postcolonial relations, creating intricate ‘structures of attitude and reference’ (Said, 2003: 23; Ashcroft, Griffiths and Tiffin, 1998) that tend to uphold and maintain white privilege and normalize white possession. The strength of postcolonial theory, however, lies in its refusal to view colonization as a completed project. It stresses the constant interplay of cultural contestation, which often takes place in the ‘interstitial spaces’ (Bhabha, 1994; Waters, 2001) between cultures. These interstitial spaces, referred to also as liminal spaces, third spaces, engagement spaces, intercultural spaces, contact zones, in postcolonial and anthropological inquiry, are sites of ambivalence, hybridity, compromise, resistance and contestation. They take us beyond the focus on entrenched, binary opposition between colonizer and colonized, creating possibilities for fresh narratives to emerge within ‘in-between’ (Bhabha, 1994) spaces. Importantly, postcolonial theories offer an alternative to Anglospheric narratives of history as a phenomenon moving forward in linear time in successive stages. Stressing, instead, continuity and repetition in the post-colony, where the ‘past’ constantly resurfaces in the present. This is useful in relation to settler colonial societies, such as Canada, Australia and New Zealand, because, while there has been formal ‘independence’ from the mother country, there has never been formal decolonization of relationships between settlers and the Indigenous population. Instead, there have been intensifying struggles around what Coulthard (2014) calls the ‘politics of recognition’ and significant continuity in terms of the dominance of settler laws, cementing white privilege. There has been a minor ‘cultural turn’ in Australia, and other settler societies, that accedes a degree of cultural difference and even acknowledges the benefits of culture in building resilient and healthy communities (Biddle, 2011; Dockery, 2009, 2011). On the other hand, as Mignolo (2011) suggests, acceding ‘cultural rights’ to Indigenous people stops well short of satisfying Indigenous demands for what he calls ‘epistemic rights’. Indigenous people vocally demand a seat at the table and are no longer prepared just to sing and dance at the preliminaries.

Criminological and sociolegal theories emanating from the Global North cannot, on their own, provide a secure epistemic basis for a critique of the justice system in relation to Indigenous peoples or form the basis for a new justice paradigm, because they operate without a theory of settler colonialism and its effects (Anthony, 2013; Anthony and Blagg, 2013; Blagg, 2016; Cunneen, 2011). Settler colonialism differs from other brands of colonialism in that it involves the wholesale appropriation of land by white settlers. According to Wolfe (2006), the logic of white settlement is ‘eliminatory’ in relation to Indigenous peoples’ connection to land. The extinguishment of pre-existing Indigenous sovereign law in Australia became the ‘litmus test of settler statehood’ (Ford, 2010). Settler colonialism uproots Indigenous occupants and replaces them in the soil, transplanting the Global North into the geographic south (Veracini, 2013) and transforming natives into strangers, strangers into natives (Pilay, 2015). The fundamental fault line in ‘frontier’ Australian states and territories such as Western Australia, the Northern Territory and Queensland still runs between a non-Indigenous mainstream, who benefit from the dispossession of Indigenous peoples from their land, and an Indigenous minority, dispossessed of land by the mainstream.

Developing strategies to end the cycle of Indigenous incarceration necessitates decolonizing the justice system, not simply reforming it. This means engaging with the question of Indigenous sovereignty, particularly in the form of demands for the return of land, and the devolution of the care and control of young people to community owned and place-based Indigenous organisations. Our decolonizing model moves place, or country, from the periphery to the centre of intervention.

Longing for Country

The potential game changer, consistent with our postcolonial approach sketched out earlier, that could provide the basis for a new paradigm, emerges not from western epistemology alone but from within a number of nascent engagement spaces at the point of intersection between Indigenous and non-Indigenous worlds, where hybrid forms of justice innovation are developing. Indigenous ‘place’ (or country) lies at the heart (in both a figurative and metaphorical sense) of this nascent sphere. Indigenous place becomes a fulcrum upon which a new decolonized justice system can be leveraged into being. The anthropologist Stanner (1979: 230) observed: ‘there is no English terminology able to capture or ‘give sense to’ the ‘link between an Indigenous group and its homeland…we are tongueless and earless to this other world of meaning and significance’. Deborah Bird Rose describes this eloquently (1996: 9):

Country in Aboriginal English is not only a common noun but also a proper noun. People talk about country in the same way that they would talk about a person: they speak to country, sing to country, visit country, worry about country, feel sorry for country, and long for country.

Our proposed reforms take a number of reforming practices in the mainstream, such as Neighbourhood Justice Centres, front-end diversion, family conferencing, Aboriginal courts, therapeutic jurisprudence, triage, judicial management and so on, and blends them to create a fresh engagement space with Indigenous knowledge and practice. The focus here is on creating new engagement spaces between Indigenous and non-indigenous domains. There are already a number of options. Community owned initiatives such as the Yiriman project, representing four of the language groups, Nyikina, Mangala, Karajarri and Walmajarri, in the Fitzroy Valley, takes young people at risk on on-country cultural camps in remote desert country (Blagg, 2012: 487). The Bosses are supported by Yiriman youth workers (a mix of Aboriginal and non-Aboriginal workers who case work young people, provide the interface with the justice and other systems, and offer longer term mentoring to young people who have been on the camps). The project, as is often the case in community owned initiatives, crosses boundaries, having ‘variously been described as a youth diversionary program, a cultural maintenance project and a way to heal young people, heal country and heal community’ (Palmer, 2013: 10). This is because Aboriginal people rarely discriminate between young people in trouble with the law and those harming themselves in other ways (Palmer, 2013). They believed that ‘returning to country’ helps to ‘build stories, strength and resilience in young people’ (Palmer, 2010: 10). Yiriman Women’s Project also runs a number of ‘back to country’ trips initiated and designed by young women, in consultation with senior women cultural leaders, such as a 2010 ‘Fitzroy Valley Women’s Bush Meeting’ and a Wangkatjungka Walmajarri Bush Medicine Camp.

The camps focus on preparing young people to become Rangers and participate in the hybrid economy. Returning to country is central to the project. The Elders ‘share stories around campfires about their skin, their history and heritage and their country’ (Palmer, 2010: 23). Cultural Bosses said that ‘kids come good’ on the camps, they ‘learned rain dance, how to make campfire, hunt Kangaroo, make damper’. As a result, one Cultural Boss said, ‘around 40 younger men are taking control of their lives’ (Blagg 2012: 489).

Two intensive cultural camps were undertaken in 2009 and 2010 directly focused on young people in trouble with the law. The first involved 10 young men who had admitted to breaking and entering houses, the second involved six boys involved in a spate of offending, and there were also 12 others, including young women, referred by community members because they were believed to be at risk. The sentencing process was run as an ‘Aboriginal court’, where cultural Elders sit with the magistrate (Marchetti and Daly, 2004). At the request of the Elders, the youths were referred to Yiriman and sentencing was deferred. Both camps were held at Jilji Bore on remote Wangkatjungka country. The magistrate was impressed by the process and by the ways the young men responded; most had greatly reduced sentences. Several had been at risk of being sentenced to periods of detention in Perth, over 2000 km away. Cultural Bosses told us that children with FASD-like symptoms are already being taken on-country and, with support, are undertaking culturally based activities, from making spears to assisting local Indigenous Ranger Programs to ‘care for country’. Immersion in on-country programs may be vital in terms of preventing the emergence of secondary disabilities (Blagg et al., 2015).

Creating ‘Engagement Spaces’ Through Diversion

Diversionary practices favour the least intrusive option at any point of interaction between an accused person and the justice system. Intervention must be a last resort and commensurate with the scale of offending, with a presumption towards non-intervention where possible. The system must be employed parsimoniously and subject to rigorous gatekeeping (see Goldson, 2013; Muncie 1999; Muncie and Goldson, 2006). The problem with this minimalist version of diversion is that it reflects an essentially Eurocentric worldview in which children, left to themselves, will mature out of crime and develop a stake in conformity. In the context of many Indigenous youth, particularly those with FASD and other cognitive impairments, maturation does not bring with it desistance from offending, less conflict with the police, or access to the mainstream world of work and domestic stability.

To be effective, diversion has to involve diversion not just out of one system but into another. Diversion could involve diversion into Indigenous owned, therapeutic alternatives, particularly in the emerging sphere of Indigenous on-country initiatives. We call this a decolonizing approach because, as noted earlier, it favours diversion into community owned and managed structures and processes, rather than community-based services that tend to remain epistemologically white. Our research with Indigenous stakeholders finds strong endorsement for an approach that places Indigenous organisations and Indigenous practices at the centre of intervention and builds the capacity of communities and families to provide for the day-to-day care and support of young people with FASD. Once a diagnosis has been presented, the main issue becomes one of stabilization and support, what has been called the ‘external brain’ (Douglas, 2010: 233–5). There is no medical ‘cure’.

Facilitating Diversion

Our research with community members and justice professionals in the West Kimberley has identified the need to create culturally secure initiatives that draw on the authority of Elders and devolve the care and management of young people with FASD to Indigenous communities. To achieve this, our proposed model is a hybrid version of schemes, initiatives and practices already in existence, particularly in the eastern Australian State of Victoria. Although in its infancy, our proposed model – a Mobile ‘needs focused’ Court – takes elements from Aboriginal courts, with their focus on the involvement of Elders in the court process, and the Neighbourhood Justice Centre model, which has a single magistrate, a comprehensive screening process for clients when they enter the court, and rapid entry into, preferably on-country, support. Such a hybrid does not currently exist in Australia.

Aboriginal courts are a relatively new development in Australia’s court landscape, emerging in the late 1990s alongside the introduction of specialist courts to deal with particular types of offenders, such as drug offenders (Bennett, 2015: 2). While not uniform, Australian Aboriginal courts tend to share the following features: involvement of Elders in the court process; a non-adversarial, informal, and collaborative approach; awareness of the social context of the offender and offending; provision of culturally appropriate options; and links to support services (Bennett, 2015; Marchetti, 2014). Aboriginal courts do not apply traditional Aboriginal law. Instead, according to Marchetti, ‘they allow Indigenous elders or community representatives to participate in the process, thereby creating a more culturally appropriate forum for sentencing Indigenous offenders’ (Marchetti, 2014: 347).

Western Australia has a patchwork of arrangements for Indigenous offenders: a specialist Indigenous family violence court – the Barndimalgu Family Violence Court – established in 2007 in Geraldton, as well as a handful of communities that allow Indigenous participation in sentencing (Bennett, 2015: 3). An Aboriginal court was established in 2006, the Kalgoorlie Community Court, applying to both children and adults. While Victorian Aboriginal courts and the Neighbourhood Justice Centre, as discussed below, are backed by legislation, this is not routine in Australia. Arrangements in Western Australia occur under existing legislative arrangements.

Australia has one Neighbourhood Justice Centre, located in Collingwood in Victoria. The Centre opened in January 2007 and has a single magistrate who has a strong understanding of the community and local issues (Neighbourhood Justice Centre, 2016; Murray 2009, 2014; Ross et al., 2009). The Centre adopts a non-adversarial approach; statutorily prescribed to proceed with as little formality and technicality as is appropriate (s4M, Magistrates Court Act 1989 (Vic)). The Centre has a co-location of services: combining court with treatment and support services including mediation, legal advice, employment and housing support, family violence support, Indigenous support services, counselling, mental health and drug and alcohol services (King et al., 2014; Ross et al., 2009).

Our proposed model would combine the techniques employed in ‘problem-oriented courts’, with the co-location of services, involvement of Elders and promotion of culturally appropriate options. These techniques attempt to collectively resolve issues through problem solving meetings involving relevant agencies and court workers, with a view to presenting solutions to the magistrate, and a non-adversarial approach, which commits prosecution and defence to focus on resolving the underlying issues that ensure repeated contact with the justice system (Blagg, 2008; Berman and Feinblatt, 2001; King et al., 2014; Murray, 2014). We consider some form of hybrid between a Neighbourhood Justice Centre model and an Aboriginal court model necessary because, currently, Aboriginal courts can only trigger access to services after a plea of guilty has been entered and an offender sentenced, whereas the Neighbourhood Justice Centre model allows for early screening and assessment before a plea is entered. Early triage and a ‘no wrong door’ approach can potentially activate a mix of services, irrespective of plea, and can even involve support services for family and others of significance.

Problem solving courts are strongly associated with the problems found in large urban conurbations. The Neighbourhood Justice Centre in Collingwood copied the idea from Red Hook in New York. However, it is our contention that a version of the model may be suited to the Australian bush. In many rural and remote locations of Australia court users – the magistrate, prosecution, the Aboriginal Legal Service and Legal Aid — travel together on circuit and, furthermore, live in close proximity. ² Furthermore, there is a single magistrate who has continuous contact with offenders and communities, which is an essential element of ‘judicial monitoring’ (Blagg, 2008; King et al., 2014). Further, the West Kimberley magistrate already employs elements of discretion in the YOA to avoid detaining young people in custody. Section 86 of the YOA allows a judicial officer to refrain from punishing an offender where satisfied that ‘such punishment as the court may approve has been, or on the undertaking of a responsible adult will be, inflicted on the offender’ and to give young people over to the care of Elders or other ‘persons of significance’. Under this arrangement, young people are already being diverted onto station programs or remote communities to be disciplined and supported through Indigenous cultural networks.

Identifying young people with, or suspected of having, FASD is a crucial element to facilitating diversion and should not contribute to young people spending long periods on remand, particularly for minor offending. A full assessment of FASD can require input from a developmental paediatrician, a speech pathologist, a neurologist, an occupational therapist and a psychologist. The process can be slow and expensive. Court-based screening mechanisms triggering diversion would not need to involve the full panoply of professionals required for a diagnosis; they would likely need to be reserved for cases where a young person faces a custodial sentence. A ‘lite’ screening tool could be developed that a psychologist and youth justice worker could use to identify youths potentially on the spectrum. This would be sufficient to trigger an application for the magistrate to deal with the matter under sections 67 and 68 of the YOA, which allows for informal and alternative forms of punishment to be carried out by responsible adult(s). This is a pathway, within existing legislation, to divert young people suspected of having FASD into Indigenous community owned and managed organisations’ on-country initiatives. This needs focused approach shifts the emphasis of justice intervention from processing offenders to identifying solutions.

At this stage of its gestation, our new diversionary model remains necessarily fluid and open. Further work is required to identify how referral pathways will work in practice and how the various components of the model will interact. Linking it back to the consultation process, there are strong synergies between the model and the demands by Aboriginal groups for a country-centric approach that re-empowers Elders, is genuinely place-based and community owned, and creates space for Indigenous forms of knowledge to be heard by the mainstream system. Our model is sensitive to the fact that many non-Indigenous professionals, justice workers and the non-government sector are anxious to explore new options, and are genuinely concerned with justice reform. Our model harnesses some of the energy and enthusiasm for ‘court innovation’ to provide a meeting ground between practitioners, legal scholars and Indigenous organisations where a decolonized jurisprudence can be imagined. The focus on front-end diversion in our model reflects the importance of influencing police decision-making where juveniles are concerned. Our consultations found that senior police were open to ‘refreshing’ the Juvenile Justice Teams along the lines we have sketched out, including employing Indigenous justice workers on teams, involving Elders more in the diversionary process, referring youths to on-country programs and instituting new training for personnel to recognize disabilities.

Concluding Comments

Our approach does not rest on the classic notion of decolonization as a rupture or radical break with the past, with Indigenous law somehow replacing settler law. This notion is, paradoxically, embedded in the binary logic of colonializm itself (Chowdry, 2007). Instead, it poses a pluralist alternative where settler law increasingly secedes sovereign power to Indigenous law and culture, allowing what Fitzgerald (2001: 41) calls a ‘vibrant and decentered’ justice system to flourish that respects Indigenous law and culture. Our approach is intended to heal, rather than perpetuate, colonial binaries. We suggest that we may be able to use some justice innovations showing promise in the mainstream to create constructive engagement spaces with the Indigenous domain where intercultural dialogue can take place. Our project, while encouraging reform of the draconian CLMIA Act, is intended to employ policing and judicial discretion already existing in legislation and at common law, rather than push for ‘all-or-nothing’ legislative change that is unlikely to be forthcoming in a continuingly punitive political climate in Australia. The return of control over country, through native title, we suggest, could be the game changer in terms of creating a new space for decolonized justice practices to flourish at a community level. Country could offer a place of healing and stabilization for children with FASD and their families.