Aboriginal and Torres Strait Islander Perspectives on the Recurrent and Indefinite Detention of People with Cognitive and Psychiatric Impairment

First Peoples Disability Justice Consortium Submission to the Senate Inquiry on the Indefinite Detention of People with Cognitive and Psychiatric Impairment

Dr Linda Steele and Professor Elena Marchetti were recently invited to contribute to a Senate Inquiry on indefinite detention of people with cognitive and psychiatric impairment, as part of a consortium of Aboriginal and Torres Strait Islander community organisations, and disability, justice and legal researchers. The final version of the submission can be found at www.aph.gov.au/DocumentStore.ashx?id=1206767c-a74a-4317-a107-b44ad2e8411b&subId=412059. The submission focuses on how the indefinite detention of people with cognitive and psychiatric impairment is experienced by Aboriginal and Torres Strait Islander people once they come into contact with the criminal justice system. Many Aboriginal and Torres Strait Islander people have some form of disability from early childhood, which is often undiagnosed meaning that these individuals do not have access to the support they might require, leaving Aboriginal and Torres Strait Islander children at risk of being institutionalised and therefore ‘indefinitely detained’, through child safety and protection policies and other justice agencies. The submission emphasises the importance of taking an intersectional approach that considers a person’s disability in conjunction with their Indigeneity in addressing the problems that arise from detaining and controlling children and adults who have a form of cognitive and psychiatric impairment. The sixteen recommendations focus on a life trajectory model to highlight the need for a holistic approach when trying to find solutions to the problem of recurrent and indefinite detention.

Professor Marchetti’s contribution, which was co-authored with Associate Professor Thalia Anthony from the Faculty of Law, UTS, emphasised the need for a systemic understanding of mental health issues and how recognition and strengthening of a person’s cultural identity is utilised through the provision of community based services and the support of Elders. Using the Canada Gladue Reports as a model, Anthony and Marchetti’s contribution highlights the need for cultural pre-sentence reports to inform sentencing courts of the complex health needs Aboriginal and Torres Strait Islander people who come into contact with the criminal justice system often require. Allowing Elders and Community Representatives to participate in the sentencing process provides the court with information about an offender’s rehabilitation and support needs. To advance the decarceration of Aboriginal and Torres Strait Islander people with mental illnesses, Anthony and Marchetti recommend that systemic issues of institutional discrimination, socio-economic disadvantage, access to early-intervention services and greater specialised sentencing options be addressed.

Dr Linda Steele’s contribution focused on diversion as an ‘alternative’ to indefinite detention. Steele argued that diversion should address the deep entrenchment in the criminal justice system of Indigenous Australians with cognitive and psychiatric impairment and their indefinite cycling in and out of multiple forms and episodes of punishment over their lifecourse. Diversion which has punitive, coercive and/or supervisory dimensions will not only fail to address the issues of entrenchment and cycling but likely exacerbate them. Diversion should trigger appropriate disability and social support, rather than be an out-of-prison form of punishment. As a signatory to the Convention on the Rights of Persons with Disabilities the Commonwealth has an obligation to ensure diversionary schemes do not breach human rights, including the right to equality and non-discrimination.

In an individual academic capacity Steele also made an additional submission separate to the FPDN submission which is focused on the discrimination inherent in forensic and civil mental health detention.

 

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