Professor of Criminology, University of Western Australia
Senior Lecturer in Law, University of Western Australia
Tutor and Former Research Assistant, Law School, University of Western Australia
The over-incarceration of Indigenous persons has been described by a Committee of the Australian House of Representatives as “a shameful state of affairs”. Despite only accounting for approximately 2% of the population, Australia’s Indigenous peoples account for 27% of the national prison population, while Indigenous youth account for 54% of juvenile detainees.  In Western Australia, the picture is even bleaker: as of 31 March this year, Indigenous peoples accounted for 73% of the State’s juvenile detainees.
Foetal Alcohol Spectrum Disorders, commonly known as FASD, is an umbrella term encompassing a spectrum of disorders caused by prenatal alcohol exposure. The impairments associated with FASD can give rise to a number of difficulties, including difficulties with memory, linking actions to consequences, and impulse control. These difficulties can render persons with FASD more susceptible to contact with the criminal justice system – as victims and offenders – and pose challenges at each stage of the criminal justice process. In Western Australia, the greatest danger is that the impairments associated with FASD may lead to a young person being indefinitely detained if found unfit to stand trial for a criminal offence that carries a term of imprisonment.
The enormity of the challenge that FASD poses to Western Australia’s criminal justice system is elucidated by research recently conducted by Telethon Kids Institute at Banksia Hill Detention Centre, the only juvenile detention centre in Western Australia, which suggests that 1 in 3 juvenile detainees in the Centre are affected by FASD. 
Our article – ‘Indefinite Detention Meets Colonial Dispossession: Indigenous Youths with Foetal Alcohol Spectrum Disorders in a White Settler Justice System’ – employs a postcolonial perspective to explore issues surrounding justice intervention in the lives of Indigenous youth with FASD in the Kimberley region of Western Australia, and maps out a reform agenda based on what we call a ‘decolonising’ alternative to the mainstream justice process.
Image Source: Department of Regional Development
The research process involved a qualitative research phase where we conducted a range of place-based interviews and focus groups with community members, justice professionals, and key individuals and groups in the West Kimberley. This place-based phase was buttressed by interviews, focus groups, and round table events in metropolitan Perth.
Image copyright: the authors.
In conducting our research, we were cognizant of the fact that research has been described as ‘the dirtiest word in the Indigenous vocabulary’. It is a discomforting fact that Indigenous people are amongst the most researched as well as the most disadvantaged and imprisoned group in Australia. White researchers are, unsurprisingly therefore, treated with suspicion when they drop in to the Indigenous domain with research agendas that do not reflect the interests and aspirations of the Indigenous community. To ensure our research aligned with the aspirations of Indigenous people in the West Kimberley, we formed partnerships with 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 formed over several decades of research in the Kimberley by Professor Blagg, and because each was engaged in work that brought them into contact with youths and families where FASD was an issue.
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. Elders’ demands 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 re-written to reflect criticisms as well as suggestions for improvements from these forums.
Our research ultimately identifies the need to create culturally secure initiatives that draw on the authority of Elders and devolve the care and management of Indigenous youth with FASD to Indigenous communities. To achieve this, 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 court, and rapid entry into, preferably on-country, support. 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 defense to focus on resolving a the underlying issues that ensure repeated contact with the justice system.
Our proposal for a Mobile ‘needs focused’ Court was adopted by the Australian Senate Community Affairs Reference Committee in its final report on the indefinite detention of people with cognitive and psychiatric impairment in Australia. The Committee considered that such a model may be an appropriate way for the criminal justice system to reach out to remote Indigenous communities, deal with alleged criminal activity in a culturally appropriate way, and then provide a suitable therapeutic on-country pathway forward.
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. Since publishing the article, Harry Blagg has received funding, together with University of Western Australia colleague Sarah Murray, for a feasibility study on the establishment of a Neighbourhood Justice Centre in metropolitan Perth, Western Australia and the research team has also received support from Indigenous organisations, the judiciary and police in the west Kimberley for the creation of a ‘mobile’ version tailored to meet local need.
Our approach does not rest on the classic notion of decolonisation as a radical break from the past, in which Indigenous law supplants settler law. This concept of decolonisation is, paradoxically, embedded in the binary logic of colonialism itself. An internally consistent definition of decolonisation must work within a worldview grounded in pluralism. Accordingly, our proposal for a Mobile ‘needs focused’ Court poses a pluralist alternative where care and responsibility for Indigenous young people is increasingly devolved to Indigenous law and culture. We suggest that we may be able to use justice innovations showing promise in the mainstream to create constructive engagement spaces with the Indigenous domain where inter-cultural dialogue can take place. To the extent such engagement spaces involve a practice of decoloniality, they work as potential ‘circuit breakers’ of the toxic cycle of colonisation, of which FASD and the over-incarceration of Indigenous persons are a part.
Harry Blagg is a Professor of Criminology at the University of Western Australia, and the Director of the Centre for Indigenous Peoples and Community Justice. Tamara Tulich is Senior Lecturer in Law at the University of Western Australia and a founder member of the Centre for Indigenous Peoples and Community Justice. Zoe Bush is a Tutor and Former Research Assistant, in the Law School, University of Western Australia . Together they are the authors of ‘Indefinite Detention Meets Colonial Dispossession: Indigenous Youths with Foetal Alcohol Spectrum Disorders in a White Settler Justice System’ published in Social & Legal Studies. The Article is available to view free for a limited time here (correct at 23/05/18).
Our research was supported by a grant from the Australian Institute of Criminology through the Criminology Research Grants program. The views expressed are our responsibility and not necessarily those of the Australian Institute of Criminology.
We are grateful to the Indigenous people in Broome, Derby and Fitzroy Crossing for their hospitality and kindness, our three partner organisations: Life Without Barriers (Broome); Garl Garl Walbu Alcohol Association Aboriginal Corporation (Derby) and Nindilingarri Cultural Health Services (Fitzroy Crossing) and the west Kimberley Magistrate for allowing researchers to accompany the court on circuit, including a ride in his plane, and to all the workers from numerous government and non‑government organisations who gave generously of their time. We are also grateful to colleagues in Perth who participated in our focus groups and roundtables. Reducing FASD requires a variegated all-of-community and multi-disciplinary approach, we saw considerable evidence of this developing.