Preventing Crime and Promoting Rights for Indigenous Young People with Cognitive Disabilities and Mental Health Issues Part 3

Preventing Crime and Promoting Rights for Indigenous Young People with Cognitive Disabilities and Mental Health Issues

Part 3

Stories from the field: A life
course approach to Indigenous young people with cognitive disabilities and
mental health issues

Back to Contents

• a) Common Themes
• b) The early years and family support
• c) The school years
• d) Early adolescence and offending
  
  • Causes of offending and early intervention
  • Police contact
  • Formal diversion and court contact
  • Involvement with juvenile justice

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The literature review pulls together some of the main concepts and findings
about Indigenous young people with cognitive disabilities and/ or mental health
issues from involvement with the juvenile justice system. However, we are also
interested in finding out what is actually happening on the ground for these
young people.

To do this, we have selected some promising programs and practices as case
studies. These will help answer our questions about what is working now, what
needs to change and ways forward to assist Indigenous young people with
cognitive disabilities and/ or mental health issues. These case studies are
supplemented by information, opinions and ideas from our consultations with a
range for experts and those working in the
field.^[157]

The literature and consultations clearly showed that preventing offending
behaviour amongst Indigenous young people with cognitive disabilities and/ or
mental health issues is very complex. Some of the causes can be tracked back to
early childhood development but continue throughout the life course.
Importantly, they need to be understood in the specific social, cultural,
historical and economic context of Indigenous communities. Interventions are not
just about helping individuals but building the capacity of the communities that
they live in. The earlier services and supports are provided, the stronger the
community and social base, the better the outcomes will be.

Different interventions are required at different stages of life. To
illustrate some of the different needs at different points in time and their
relationship to offending behaviour, this section will map case studies across
the life course. Each life stage will be accompanied by some of our consultation
findings, some current service delivery challenges and case studies of programs
or services. This plots a continuum of holistic service delivery aimed at
preventing crime amongst Indigenous young people with cognitive disabilities
and/ or mental health issues.

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a) Common Themes

Building on solid foundations through holistic services

Indigenous young people with cognitive disabilities and/ or mental
health issues share many of the same needs as other Indigenous young people.
They come from the same families, the same communities but face additional
disadvantage due to their cognitive disability or mental health issue. For this
reason, the overwhelming response from our consultations was that Indigenous
young people with cognitive disabilities or mental health issues need to be
viewed holistically. Unless the entire spectrum of needs is addressed in a
culturally appropriate way, it is unlikely that specialist disability or mental
health services will effect much, if any change.

Similarly, there are good reasons to integrate capacity to deal with
cognitive disabilities and/ or mental health issues in accessible, culturally
appropriate services. Many of our consultations pointed out that Indigenous
young people don’t need another label and can suffer adverse consequences
if they are singled out from peers for special treatment. Furthermore, many of
the people consulted agreed that most of these young people would not attend a
service that was based on their mental health or cognitive disability status.
So, while it might seem like an easy fix to provide services specifically for
this group of young people, based on our consultations, tightly targeted service
provision is not the answer.

Overwhelmingly, participants suggested a holistic model of service to assist
all Indigenous young people, including those with cognitive disabilities and/ or
mental health issues. Associate Professor Helen Milroy, an Indigenous child and
adolescent psychiatrist, outlined this approach, encompassing physical,
psychological, social and spiritual/ cultural needs. Below is Professor
Milroy’s assessment of what is particularly relevant for all Indigenous young people including those with cognitive disabilities and/ or
mental health problems at risk of juvenile justice involvement.

• Physical: Screening for chronic diseases such as rheumatic
  fever, kidney damage, anaemia, blood sugar levels. Screening and assessment of
  any development delay, indicating cognitive disability.
  
• Psychological/ Emotional: Consideration of experiences of
  trauma, loss, identity issues. An assessment of coping styles, autonomy and
  emotional regulation, as well as awareness that most young people with cognitive
  disabilities do not have emotional language so may be acting out to express
  themselves.
  
• Social: Understanding of family and where the young person
  fits in society. This requires Indigenous mentors and role models to help young
  people find their place in their communities. We need to help young people
  understand the story of Indigenous people, so that young people don’t keep
  thinking that the problems in communities are due to fact that they are simply
  ‘bad’. Instead, need to help them understand the history and turn
  negatives around to instil pride in their identity.
  
• Spiritual/ Cultural: Need to validate culture and
  experiences and promote connection to ancestry through healing and culture
  camps.^[158]
  

These principles should act as a checklist for all services for
Indigenous young people and have guided the selection of our case studies.

Holistic service delivery for Indigenous people is not a new idea and has
long been part of Indigenous health policy. However, according to Professor
Milroy, there are few programs that actually meet all of these needs. Indigenous
programs tend to meet social and spiritual/ cultural needs well. Mainstream
services deal better with physical and psychological/ emotional needs but
neither seems to be able to balance all of these areas of concern.

Holistic service delivery also means an interagency, whole of government
approach. The complex needs of Indigenous young people with cognitive
disabilities or mental health problems means that they are likely to be involved
with a range of government and non government services. Despite a whole raft of
policy documents and guidelines extolling the importance of interagency
cooperation, our consultations found that this is rarely the case on the
ground.

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Appropriate Assessments

At every stage, assessment and identification of children and young
people with cognitive disabilities and/ or mental health issues is crucial.
Without identification, children and young people are likely to have their needs
ignored or misinterpreted. This in turn, leads to poor outcomes. Despite the
importance of early identification of special needs, consultations suggested
that Indigenous young people with cognitive disabilities and/ or mental health
issues slipping through the gaps was the norm, rather than the exception.

Consistent with the literature review, there were real concerns about the
cultural bias in psychological assessments for cognitive disabilities and/ or
mental health issues. Although there is greater validity for visual tests,
according to workers from the Disability Services Commission in Western
Australia, ‘you may as well throw away the tests when you are working with
remote communities.’^[159] Instead, workers ask parents or caregivers to compare the child or young person
to others the same age to get a sense of appropriate development. Assessment is
less clinical and ‘really a series of educated
guesses’.^[160]

Low confidence in assessment tools, continuing cultural bias, low
expectations of Indigenous children and low recognition amongst Indigenous
families and communities about possible cognitive and mental health all lead to
fewer assessments. Assessment is the gate keeping process so fewer assessments
equal lower levels of service provision.

To be eligible for disability support services a young person must have an IQ
less than 70. This knocks out a large group in the borderline intellectually
disabled range. Further, there was a belief amongst those we consulted that this
is an arbitrary line. Many young people with higher IQs may be functionally well
below the diagnostic mark. This is because any cognitive deficits are compounded
by living in disadvantaged environments.

Mental health assessments also function poorly with Indigenous young people.
Mental health assessments do not contextualise behaviour and symptoms within an
awareness of Indigenous history and experience. The magnitude of trauma in the
Indigenous community suggests that we need to seriously consider child and
adolescent behaviour in this context. Across the board, experts, workers and
community members felt that trauma and pain was at the root cause of most mental
health issues.

From a clinical point of view, Professor Milroy suggested that there is a
gross under diagnosis of Post Traumatic Stress Disorder (PTSD) in Indigenous
communities. PTSD is a psychological condition following exposure to a stressful
or traumatic experience. It has been recognised as a particular issue for
indigenous peoples around the world as:

the common experiences of childhood and adult trauma, removal of children
from families, interpersonal violence, substance abuse, and early death all
result in generations of people more likely to suffer from
PTSD.^[161]

The most commonly known symptom of PTSD is flash backs but also include
restlessness, insomnia, aggressiveness, hyper-arousal and hyper-vigilance,
depression, dissociation, emotional detachment and nightmares.

Many Indigenous young people are never diagnosed with PTSD. Instead, their
behaviour is usually labelled as a conduct disorder. Alternatively, young
people who report hearing, seeing or speaking to ancestors are often diagnosed
with psychotic illnesses such as schizophrenia when Professor Milroy believed
that for the most part they are likely to have suffered from PTSD or depression.
These diagnoses require very different treatments so there is no surprise that
little progress is made with young people who are incorrectly diagnosed.

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Indigenous Concepts of Disability

Consultations affirmed the need to look at Indigenous concepts and
experiences of disability. Workers from the Western Australian Disability
Services Commission felt that some Indigenous families and communities did not
recognise cognitive disability in the same way as non- Indigenous people. That
is, signs of developmental delay were often attributed to the person being
‘a bit slow’ and not necessarily requiring further support.

Concepts of disability seem to be based on whether or not a person is
functioning in the community context rather than diagnostic labels. For
instance, Disability Services Commission staff related a case of a young person,
who had been seen as ‘slow’, had struggled at school and
didn’t communicate well. However, it wasn’t until his family found
out that he didn’t understand, and in fact transgressed cultural law, that
they thought something might be wrong and sought assistance.

Indigenous disability advocates from the NSW Aboriginal Disability Network
agreed that disability can mean different things in different communities and is
often a ‘difficult
conversation’.^[162] Nonetheless, disability causes real needs and ultimately diminishes a young
person’s ability to participate in society if they are not given
appropriate support and access. For this reason, any attempt to address
disability should be within a rights based framework, rather than highlighting
deficits and conferring labels.

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Different models of service
delivery

The different circumstances and needs of Indigenous
people with cognitive disabilities and/ or mental health issues require
different models of service delivery. Many practitioners and experts in the
field affirmed the vital role of Indigenous controlled services as a way to
access culturally appropriate service but also help ‘sell’ their own
services. Forming these sorts of partnerships can help make services, which may
otherwise be viewed with suspicion, more accessible.

According to Shane Brown, South Sydney Youth Services, in terms of providing
mental health care it is essential to place services outside of mainstream
mental health services for young
people.^[163] There is still a lot
of stigma around mental illness and many young people do not want to be
labelled. Therefore, they are more likely to use a service at a generic youth
service or other outreach method.

Given that some Indigenous people live in remote areas, there is a need for
greater flexibility. The Disability Services Commission in Western Australia has
extensive experience in meeting these challenges. For them, it is thinking about
alternative ways to purchase services, co-location with other services and
economies of scale. So, if there is only one person in Fitzroy Crossing that
really needs service, it can pay to be more flexible with service eligibility in
order to get more people utilising a service.

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b) The early years and family support

It should be noted that
while there is some consideration of the early years, this report is primarily
focused on the particular circumstances around older children and young people.
However, the common message through all of the consultations and case studies
was the need to intervene early, providing a solid family and community base.
When asked what needs to be done to prevent Indigenous young people with
cognitive disabilities and/ or mental health issues from offending, most of the
people made the connection between keeping families together, happy supported
childhoods and good outcomes for children and young people, regardless of
cognitive disability or mental health status.

Unfortunately, consultations reinforced that families are struggling, often
resulting in high levels of child protection involvement. According to Phillip
Narkle, respected Aboriginal Elder and Aboriginal Team Advisor with the Western
Australian Intensive Supervision Program, ‘it is isolation and separation
from family, friends and communities that really damages these
kids.’^[165] This is not news
to anyone, but when we consider the extra complexity of disability or mental
health issues on struggling families, we can see that this group of children and
young people are at higher risk of being separated from their families. Based on
stories from practitioners, a majority of the Indigenous young people with
cognitive disabilities and/ or mental health issues have had involvement with
the juvenile justice system and the child protection system.

Understanding and meeting the needs of young children with disabilities or
mental health issues is essential to support families. Our consultations
confirmed the picture of extreme socio- economic disadvantage, a very heavy
burden of loss, family dysfunction, alcohol and drug use, child abuse, poor
health and trauma. This burden of stress impaired family and community capacity
to identify cognitive disability or mental health issues early on. Put simply,
within such urgent, competing priorities, a child’s developmental
milestones or early signs of mental health issues tend to go unnoticed until
they reach crisis point. While families are struggling to meet basic needs,
these issues remain unnoticed.

However, there was a consensus that more needs to be done to build Indigenous
family capacity to pick up these early signs. A good suggestion from the
Aboriginal Disability Network was to increase the capacity of Aboriginal Health
Workers to screen for any issues during routine health checks. Theoretically,
while this should be happening on the ground, due to the level of stress and
under resourcing, many Aboriginal health workers are too stretched to undertake
this work. Damian Griffis, from the Aboriginal Disability Network notes that
many do not have the specific disability knowledge required.

Similarly, there is also a need for more skills and education to support
screening for mental health issues. One positive initiative is Aboriginal and
Torres Strait Islander Mental Health First Aid Course (AMHFA). The AMHFA comprises of a 14-hour Mental Health First Aid Course and a
research and evaluation arm. The purpose of the training is to provide people
that come into contact with people with mental illness with basic skills and
knowledge around causes, symptoms and management of mental illness. Like
physical first aid treatment, it provides non- medical professionals with the
opportunity to intervene before professional help arrives and increase their
confidence in dealing with serious situations. The AMHFA is still in the pilot
phase but is already yielding some good results.

The location of screening services and interventions is also crucial. Based
on extensive research with Indigenous people with disabilities around NSW, Mr
Griffis believed that there is still a very real fear that any disability or
mental health issues of a child will be interpreted as poor parenting. Given
past and present experiences of Indigenous communities, this is likely to lead
to child protection action and removal of children. Locating these types of
services in more trusted Indigenous controlled services could help over come
this barrier.

Jenny Thomsen, from the Aboriginal Disability Network also suggested building
awareness of disability and mental health issues amongst mothers and carers
through ‘informal and friendly’ interactions such as mothers groups.
There is also a role for family support and parenting programs to help families
deal with cognitive disabilities and mental health problems. These children
often act out and display difficult behaviours which are very difficult for
parents.

Any such parenting support programs need to be sensitive to the interplay
between Aboriginal child rearing practices and family strain. Professor Milroy
explained that Indigenous children have autonomy from an early age:

This works if a family is functional and well buffered, so that a child can
learn independence within boundaries but if a family is dysfunctional, the child
gets independence with no boundaries. They are seen as adults by 10 years of
age, have no trust for others and won’t listen to adults. So what is
adaptive in the first 10 years to keep them safe becomes maladaptive later
on.^[166]

The challenge is the help parents learn how to set boundaries with children
in a way that still fosters appropriate independence and respect.

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c) The school years

School, particularly primary education should be the basis for good outcomes
for all children. For Indigenous young people with cognitive disabilities or
mental health issues it should be a chance to identify impairments that impact
on learning and put appropriate supports in place.

The predominant focus of our consultations was primary school. Primary school
sets the literacy, numeracy and skills foundation needed for high school. If
these skills are not mastered, children are unlikely to cope with high school.
We know that Indigenous young people who end up in the juvenile justice system
have low educational outcomes, dropping out of school early. This means that
most of their education is probably at a primary school level.

Associate Professor Colleen Hayward, Manager of the Kulunga Research Network
felt that the findings of the Western Australian Aboriginal Child Health Survey
confirm this picture. Their research showed that no real gains have been made in
educational outcomes for Indigenous young people over the past thirty years.
Aboriginal children start from behind and are never able to make up the ground.

One promising initiative being implemented, according to Professor Hayward,
is the Australian Early Development Index. The Australian Early Development
Index (AEDI) is a measurement of a child’s development, based on scores
from a teacher completed checklist. It is used for children in their first year
of school to look at aspects of:

• physical health and wellbeing;
• social competence;
• emotional maturity;
• language and cognitive skills; and
• communication skills and general
  knowledge.^[170]
  

The AEDI is currently being validated across the nation. The
Telethon Institute is looking at a culturally appropriate adaptation for
Indigenous young people. The AEDI is not designed to specifically diagnose
children with specific learning disabilities or areas of developmental delay, it
does act as a preliminary way of looking at what needs or areas for further
consideration are present for children.

The inaccurate identification of Indigenous children as having cognitive
disabilities seems to be a very real issue in Indigenous communities. That is,
there are a large number of Indigenous young people who are being labelled as
having a cognitive disability when in fact they don’t, or have a mental
health issue instead. For Dr Chris Sarra, Director of the Indigenous Education
Leadership Institution, the issue is entwined with the negative perceptions and
expectations of Indigenous children.

Dr Sarra draws his expertise from over twenty years in the education system
as a teacher, guidance officer, academic and principal. He was the first
Indigenous principal at Cherbourg State School. A lot has been written about how
to improve Indigenous education outcomes, but Dr Sarra’s leadership at
Cherbourg seems to have actually put these principles into practice. A key part
of the process was shifting attitudes of school staff, community and children.

Dr Sarra argued that mainstream Australia has very negative perceptions of
Indigenous people. This filters down to those involved with the education
system. Some teachers have lower expectations of Indigenous children based on
the ‘complexity’^[171] of Indigenous young people and perceptions that Indigenous families
‘don’t value
education.’^[172] Indigenous
children and young people internalise these perceptions and low expectations to
the extent that there is ‘collusion between school and children’s
mind sets’^[173] which
ultimately produce failure. Judy Gould, a speech pathologist and doctorate
researcher who has worked extensively with Indigenous young people in schools
across Australia, characterised a ‘culture of
deficit’^[174] in many
schools.

In a context where schools regard Indigenous children and young
people with low expectations and hold attitudes about children’s capacity
based on cultural assumptions, testing for intellectual disability is frequently
misused. According to Ms Gould, testing for intellectual or cognitive disability
can often be used to ‘confirm what they think about
kids’^[175] rather than
constructively investigating any actual disability issues. Young people who act
out are often labelled as intellectually impaired without any consideration of
other issues that may be impacting on their behaviour such as family stress,
language problems and particularly, hearing problems. Based on her research, Ms
Gould found that instead of a child’s needs being considered holistically,
the ‘default setting is intellectual
disability.’^[176]

A lack of contextual awareness creates a very limiting lens to look at
Indigenous young people’s experiences at school. As well as incorrectly
assessing cognitive disabilities, Professor Milroy noted the potential to
misunderstand young people with mental health issues. As previously mentioned,
at least anecdotally, there appears to be a large number of young people who
could be diagnosed with post traumatic stress disorder. There is a real risk
that their behaviour will be interpreted as cognitive disability rather than
ringing alarm bells about mental health and leading to appropriate treatment.
Professor Milroy has worked with children who have been expelled from school as
early as year one due to undiagnosed PTSD. This represents a failure of the
education system to look behind behaviours to understand underlying issues.

Dr Sarra and Ms Gould observed a misplaced view amongst some staff that even
if the young people do not actually have an actual cognitive disability or
intellectual impairment, ‘at least they are getting extra help at
school’.^[177] However, the
fundamental flaw in this argument is that being labelled as having a cognitive
disability or intellectual impairment often leads to worse, not better outcomes,
for the child.

As previously noted in the literature review, incorrect diagnosis based on
Indigenous status may raise a case for indirect discrimination. This may be
covered under the Racial Discrimination Act 1975 even if being identified
as having a disability lead to additional services. This is because the label
and subsequent treatment are less favourable and detrimentally affect the
child’s rights.

For instance, Ms Gould recounted an all too common scenario, where a child in
Year 1 was doing well at school but the family had come into hardship and were
dealing with grief and loss issues. The child then started acting out in class
and was soon treated as ‘naughty’ and assessed as having an
intellectual impairment. The child was taken out of mainstream classes and
placed in special education instead. There was no consideration of the family
issues at play and the child was taken away from peers and the only teaching aid
that was actually able to engage the child in learning.

Children are acutely aware of labels and categories. Even from Year 1, the
children knew the special education class as the ‘dummies class’.
This impacts on children’s self esteem, identity and most importantly,
desire to attend school. Dr Sarra believes that children (and teachers) perform
to expectations, which can have serious consequences for children who are
labelled as ‘dummies’ and taken away from peers.

This particular
child was only in the special education class for around a year but during that
year lost track of the work and skills being learnt by the children in the
mainstream classes (which was already way behind minimum standards). So while
there probably wasn’t a good reason for the child be in the special class,
the child ‘lost a year of learning opportunity, you can’t get that
back.’^[178] Ms Gould
assessed that this may have damaged this young person’s chances. Without
these foundational skills, children struggle to keep up and gradually disengage
from school.

Another reason for the inappropriate labelling of children is tied to
funding. Children with cognitive disabilities or requiring additional support
obviously attract additional funding to schools. At least in Queensland, funding
used to be allocated to individual students to purchase teacher’s aide
hours and other support. It is now provided to schools without restriction and
can be used to pay for additional teachers rather than support specific to the
individual child. Anecdotally there is evidence of Indigenous children being
assessed as intellectually impaired without even informing the parents or
caregivers.

Aside from the enormous ethical issues, how can any positive change be made
by the school, and with the family, if there is not basic communication and
cooperation in the child’s best interest? Legally, it would seem that not
consulting with the child or their parent(s) is in breach of the Disability
Standards for Education under the Disability Discrimination Act 1992. These standards state:

Before the education provider makes an adjustment for the student, the
education provider must consult the student, or an associate of the student,
about:

1. whether the adjustment is reasonable; and
2. the extent to which the adjustment would achieve the aim in paragraph 4.2
   (3) (b), 5.2 (2) (b), 7.2 (5) (b) or 7.2 (6) (b) in relation to the student;
   and
3. whether there is any other reasonable adjustment that would be less
   disruptive and intrusive and no less beneficial for the student.
   

Issues of incorrect assessment aside, data shows that there is
still a group of Indigenous young people with cognitive disabilities and/ or
mental health issues. The question is how do we assist these children to enhance
life chances? Once again, those we consulted with highlighted the similarities
more than the differences of Indigenous children without cognitive disabilities.
As the research has been telling us for the last 30 years, we need an education
system that engages with families and communities; that provides a strong
literacy and numeracy base early in life; and fosters a strong Indigenous
identity. We heard that there are lots of strategies and policies but only
pockets of practice where this is happening on the ground.

Teachers and practitioners recommended that getting assessment right is the
first step. This means using standard IQ and other testing, but only as part of
a ‘bigger picture that looks at young people
holistically.’^[179]After all
of these things have been considered, if a cognitive disability is still found,
there needs to be a conversation with parents or caregivers about what this
means. One of the main advantages of identifying a cognitive disability early
should be that it increases the chances of the family understanding and dealing
with a young person’s behaviours. In terms of school support, especially
for Indigenous children, the preferred strategy is working with them in
mainstream classes with a teacher’s aide wherever possible, rather than
segregating them from peers.

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d) Early Adolescence
and Offending

So far we have seen that struggling community and family backgrounds, lack of
early identification and support, the systemic failure of the school system and
disengagement from education all mark a steady progression into offending for
many Indigenous young people with cognitive disabilities or mental health
problems. By the time they reach late childhood and early adolescence, our
consultations have found that many are already involved in anti-social or
offending behaviour.

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Causes of Offending and Early Intervention

The reasons for involvement in offending are similar again, to
other Indigenous young people. However, this group is more vulnerable and less
understood by police and other criminal justice workers. For young people who
have struggled at school due to a cognitive disability or mental health issue,
offending often relates to the child development principle of
‘mastery’. Professor Milroy stated that because many of these young
people didn’t master skills at school, they keep trying until they find
something that they are good at. For many of these young people, being
‘tough’ and then getting into trouble is something that fills that
gap. Conversely, if support and encouragement was given to these young people to
channel their strengths and energies into something more positive, they could
also achieve a sense of mastery and increased self esteem without offending and
anti-social behaviour.

Identity was a common theme in all of our
consultations. As previously stated, Indigenous young people often struggle to
find role models and cultural identity. Linda Bamblett, Manager of the Victorian
Aboriginal Community Services Association Limited (VACSAL) that provides support
to young Kooris involved with the juvenile justice system believed that many of
their clients are ‘like fringe dwellers on Koori and mainstream
society’^[186] and are
seeking some sort of belonging.

One way of creating belonging and identity is the formation of groups. For
instance in Melbourne, Ms Bamblett argued that a group of Koori young people
have, ‘taken it upon themselves to make their own cultural identity,
belonging and
acceptance’^[187] through the
formation of the ‘Koori Kripps’. This group of young people is
involved in offending and fights other similar groups of young people. Workers
felt that young people with cognitive disabilities were especially susceptible
to joining these groups as they may already have lower self-awareness and self
esteem.

The situation has caused considerable concern in the community and people
have come together to try and address the reasons that have led these young
people into this group rather than more positive ways of expressing their
identity. Without condoning the bad behaviour and potential for violence, there
was a real acknowledgment that these groups can form in response to perceived or
real threats from other groups. Due to low confidence in police protection,
these young people reportedly decide to protect themselves.

All of the
workers on the ground noted the need to deal with the issue of groups of young
people, or ‘gangs’ with great sensitivity. There is the potential
for the perception of ‘criminal gangs’ to be politicised and create
demonising images of Indigenous young people. The media portrayal of the
Adelaide ‘Gang of 49’ was cited as testament to the danger of
reinforcing of negative stereotypes. If young people are forming these groups
because they feel alienated and marginalised from society, such approaches are
insensitive and counter productive.

We also can’t underestimate the impact of poverty on these young
peoples’ involvement in offending. We heard many stories of Indigenous
young people, especially in rural and remote areas stealing to survive. Young
people with cognitive disabilities can lack the skills to negotiate ‘the
system’ and engage in rather reckless offences to get money for food and
basic necessities.

Another recurrent theme in the consultations was the
impact of family violence, leading to offending and also mental health problems.
Lester Corning, manager of the Victorian Aboriginal Health Service Family
Counselling Service, told us of his experience working with children who were
stealing to survive as their parents were off gambling or drinking. The children
would then get caught; often the father would hold the mother responsible,
resulting in severe abuse and violence. The children would witness this
violence, often impacting on their own mental health. Mr Corning described this
cycle:

These kids are on a roundabout of floggings and hurt. They get flung off
occasionally, we call that suicide or mental health but not much happens to stop
it.^[188]

Many of these young people find themselves in need of mental health services.
However, we heard from practitioners that there is a severe lack of mental
health services. For instance, Anthony Brown, Indigenous family counsellor at
the Victorian Health Service, estimated that they would receive about thirty
referrals for service in a month, whilst they are only resourced to work with
around thirty families in a year. Many of these young people are involved with
juvenile justice or at extreme risk of involvement.

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Police Contact

Consistent with the literature review, in the field it was reported
that Indigenous young people with cognitive disabilities and/ or mental health
issues are more likely to have involvement with the police. Notably, in Western
Australia, the Western Australian Aboriginal Legal Service found that the
Northbridge curfew and move on laws disproportionately affect Indigenous people
and people with mental health issues. This was due to greater use of public
space and high levels of homelessness. In their experience, when young people
were asked to move on by police, often for trivial reasons, the situation
quickly escalates, leading to further charges. Adding mental illness or
cognitive disability to this volatile mix and the ‘trifecta’ of
offensive behaviour or offensive language plus resist arrest and assault police
officer, often brought these young people into the juvenile justice system.

Police act as gatekeepers of the juvenile justice system. Police have great
discretion to either charge or divert young people. While all agreed that
diversion was the ultimate goal, unless something is done to assist young people
at the point of police diversion or contact, it is highly likely that they will
be in trouble again. Although some young people get in trouble as a one off,
many of the Indigenous young people with complex needs, including cognitive
disabilities and/ or mental health issues, continue offending. So while Police
must use cautions and warning and other diversionary options, there is an
argument for providing some sort of ‘help and not just a slap on the
wrist’, as an early intervention. However, this must be balanced with net
widening concerns and be voluntary.

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Formal Diversion and Court Contact

Many Indigenous young people miss out on the early intervention services and
positive school experiences which foster positive identity and provide
opportunities to a better life. If these services have failed, the next point of
intervention usually comes at formal diversion and court contact.

Supported by the research, those we consulted with found that Indigenous
young people mostly offending at an earlier age. Tirkandi Inaburra workers
reported that many of their clients may have been offending even before the age
of criminal responsibility, so by the time they reached 10 years of age police
already perceived them as ‘a menace and come down
hard’.^[190] Cautions and
warnings all get used up much earlier and young people are referred to
diversionary options such as conferencing sooner than non- Aboriginal children,
if at all.

Dr Harry Blagg, of the Crime Research Centre in Western Australia was
critical of the impact that conferencing has had on Indigenous young people. He
believes that diversion is ‘still failing Aboriginal
kids’^[191] and very little
improvement has been made over the past 15 years. As long as the police remain
the gatekeepers of this system and there is little transparency at the level of
discretionary decision making, this will remain the case. In fact, the diversion
of so many non-Aboriginal offenders through conferencing, leaving an over
represented group of Indigenous offenders behind, further stigmatises Indigenous
people and feeds into negative stereotypes of Indigenous people as
offenders.

Within this dynamic, Indigenous young people with cognitive disabilities or
mental health issues are once again considered especially disadvantaged. Most
had very little confidence in police being able to pick up on these issues and
there seems to be little reported capacity to adapt the process to meet their
needs. This is disappointing because a conference run along a restorative
justice model has the potential to ‘make things right’ with the
offender, victim and community and develop a plan which can help the offender
find their place in the community.

Our consultations found that the situation didn’t improve as the young
person moved to more formal proceedings. Aboriginal Legal Services felt that
legal staff often lacked the knowledge and resources appropriately deal with
Indigenous young people with cognitive disabilities or mental health issues. A
former NSW ALS solicitor reported:

everyone knows the factual things about Aboriginal people and mental health
and have statistics in their head, but some magistrates find it very difficult
to apply it in real life... I have seen otherwise very insightful magistrates
making some bad
decisions.^[192]

Aboriginal Legal Services staff expressed a need for practically based
training aimed at magistrates and legal professionals to increase their
awareness of these issues, the prevalence of mental health and cognitive
disabilities and a basic understanding of some of the signs. Of course, this is
no replacement for proper assessment but it helps build recognition of the
issue.

We heard that Indigenous young people seem to be missing out on diversion
from the juvenile justice system under mental health provisions. For instance,
in NSW there is a provision for diversion under the Mental Health (Criminal
Procedure) Act. Section 32 of the Act applies if:

it appears to the Magistrate that the defendant is (or was at the time of the
alleged commission of the offence):

1. developmentally disabled; or
2. suffering from a mental illness; or
3. suffering from a mental condition for which treatment is available in a
   hospital;
   
   but who is not a mentally ill person within the Mental
   Health Act.^[193]

If this applies, the Magistrate can divert the offender by dismissing the
charge and discharging the person:

1. into the care of a responsible person, unconditionally or subject to
   conditions;
2. on the condition that the defendant attend a certain place for
   assessment and/ or treatment; or
3. unconditionally.^[194]
   

This should be a good way of dealing with Indigenous young people
with cognitive disabilities and/ or mental health issues as it has the capacity
to order treatment but doesn’t necessarily involve the young person in the
juvenile justice system.

Anecdotally, this is being under utilised for Indigenous young people.
Firstly, because of the appalling gaps in service there is no confidence among
magistrates that the person will actually receive treatment. Secondly, the
reports required can be up to $600 and therefore beyond the budget of stretched
Aboriginal legal services unless the young person is facing custody. Finally,
many of the young people with these complex issues are likely to breach bail in
the time that it takes to prepare the report due to inadequate support. In a
way, going through this process can be setting them up to fail.

Since the 1990s there have been a
range of alternative court models and processes. Notably, these have included
Indigenous courts and mental impairment/ intellectual disability courts. By and
large, those we consulted with were positive about the developments. There was a
sense that traditional courts may misinterpret the behaviours of Indigenous
young people with cognitive disabilities or mental health issues, often
attributing non-compliance and particular presentations to cultural reasons.
Juvenile justice practitioners saw the greater likelihood of these courts to
notice and intervene in cognitive disability or mental health issues, as they
had greater cultural understanding and awareness of ‘where the kids are
coming from’.^[195]

The process of sitting around a table and discussing the offence and options
is also more likely to achieve engagement with Indigenous young people with
cognitive disabilities according to juvenile justice workers. Unlike other court
proceedings, the less formal nature means that there are opportunities to check
whether the young person actually understands what is going on and subsequently
any outcomes or orders which they need to abide by. The role of Elders and
recognition of culture is also important in achieving accountability and
demonstrating that offending is not acceptable to the Indigenous community
either. For young people with cognitive disabilities this concrete display had
the potential to really sink in.

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Involvement
with Juvenile Justice

By the time Indigenous young people with cognitive disabilities or mental
health problems actually come in contact with the juvenile justice, they have
usually suffered a range of systemic failures. Instead of using opportunities to
intervene, many young people have fallen into the ‘too hard basket’
that leads to custody. However, there is a strong commitment not to give up on
these young people. Just because they have progressed through to the extreme end
of the juvenile justice system, there are still opportunities for positive
change.

Consistent with the statistics, we heard that Indigenous young people are
more likely to be entering custody, either on remand or a custodial sentence. We
heard many stories about institutionalisation and the desperate circumstances
where some Indigenous young people even committed offences with the express aim
of going into custody as it was preferable to their lives on the outside.

Young people with cognitive disabilities may also be more prone to
institutionalisation. Practitioners working with Indigenous people with
disabilities found that some young people were actually more functional when
they were in custody. This was because they responded to the structure, routine
and certainty of custody, compared with their chaotic lives on the
outside.^[198] This is not a
justification for custody but it does show that strategies and structure can
work to support young people in the community.

Conversely, Indigenous young people with mental health problems often
deteriorated in custody and in fact, some mental health issues were context
dependant, according to Professor Milroy. We heard that mental health needs in
custody were not always met, with few forensic services for juveniles across the
country.

There was a call for greater screening of cognitive disabilities and/ or
mental health issues by the juvenile justice system, although there was some
concern raised about the specific disability and mental health knowledge of
juvenile justice workers. Nonetheless, it makes sense that these issues be
seriously considered as they have the likelihood to impact on what sort of case
plan is developed and how it is implemented. Once again, there was a call for
more culturally appropriate services as a base of any assessment or intervention
for Indigenous young people with cognitive disabilities or mental health issues.

 

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---

Endnotes

^[157] A list of consultations
can be found at Appendix
1.

^[158] Milroy, H.,
Communication with the Social Justice Commissioner’s Office, 22 March
2007.

^[159] Stopher, K.,
Communication with the Social Justice Commissioner’s Office, 19 March
2007.

^[160] Stopher, K.,
Communication with the Social Justice Commissioner’s Office, 19 March
2007.

^[161] Raphael, B., Swan,
P. and Martnek, N., “Trauma for Australian Aboriginal People”, in
Danieli (ed), International Handbook of Multigenerational Legacies of Trauma, Plennum Press,1998,
pp327-339.

^[162] Griffis, D.,
Communication with the Social Justice Commissioner’s Office, 27 April
2007.

^[163] Brown, S.,
Communication with the Social Justice Commissioner’s Office, 1 March
2007.

^[164] Gornall, D.,
Communication with the Social Justice Commissioner’s Office, 19 March
2007.

^[165] Narkle, P.,
Communication with the Social Justice Commissioner’s Office, 20 March
2007.

^[166] Milroy, H.,
Communication with the Social Justice Commissioner’s Office, 22 March
2007.

^[167] Royal Australian
College of Physicans, Health of Children in Out of Home Care, RACP,
Sydney, 2006, available at http://www.racp.edu.au/hpu/paed/index

^[168] Royal Australian College of Physicans, Health of Children in Out of Home
Care, RACP, Sydney, 2006, available at http://www.racp.edu.au/hpu/paed/index

^[169] Royal Australian College of Physicans, Health of Children in Out of Home
Care, RACP, Sydney, 2006, available at http://www.racp.edu.au/hpu/paed/index

^[170] Royal Children’s Hospital, Australian Early Development Index: Building
better communities for children , 5 March 2008, available online at: http://www.rch.org.au/australianedi/edi.cfm?doc_id=6211,
accessed 25 March 2008.

^[171] Sarra, C.,
Communication with the Social Justice Commissioner’s Office, 16 April
2007.

^[172] Sarra, C.,
Communication with the Social Justice Commissioner’s Office, 16 April
2007.

^[173] Sarra, C.,
Communication with the Social Justice Commissioner’s Office, 16 April
2007.

^[174] Gould, J.,
Communication with the Social Justice Commissioner’s Office, 18 April
2007.

^[175] Gould, J.,
Communication with the Social Justice Commissioner’s Office, 18 April
2007.

^[176] Gould, J.,
Communication with the Social Justice Commissioner’s Office, 18 April
2007.

^[177] Sarra, C.,
Communication with the Social Justice Commissioner’s Office, 16 April
2007.

^[178] Gould, J.,
Communication with the Social Justice Commissioner’s Office, 18 April
2007.

^[179] Sarra, C.,
Communication with the Social Justice Commissioner’s Office, 16 April
2007.

^[180] Sarra, C.,
‘Stronger Smarter School Outcomes through Aboriginal perceptions of being
Aboriginal’ (2006) 11 Griffith
Review.

^[181] Sarra, C.,
‘Stronger Smarter School Outcomes through Aboriginal perceptions of being
Aboriginal’, (2006) 11 Griffith
Review.

^[182] Sarra, C.,
‘Stronger Smarter School Outcomes through Aboriginal perceptions of being
Aboriginal’ (2006) 11 Griffith Review,
2006.

^[183] Sarra, C.,
‘Stronger Smarter School Outcomes through Aboriginal perceptions of being
Aboriginal (2006) 11 Griffith
Review.

^[184] Sarra, C.,
‘Stronger Smarter School Outcomes through Aboriginal perceptions of being
Aboriginal’ (2006) 11 Griffith
Review.

^[185] Sarra, C.,
Communication with the Social Justice Commissioner’s Office, 16 April
2007.

^[186] Bamblett, L.,
Communication with the Social Justice Commissioner’s Office, 30 March
2007.

^[187] Bamblett, L.,
Communication with the Social Justice Commissioner’s Office, 30 March
2007.

^[188] Corning, L.,
Communication with the Social Justice Commissioner’s Office, 30 March
2007.

^[189] Cunneen, C.,
Communication with the Social Justice Commissioner’s Office, 19 April
2007.

^[190] Seymour, M.,
Communication with the Social Justice Commissioner’s Office, 3 April
2007.

^[191] Blagg, H.,
Communication with the Social Justice Commissioner’s Office, 22 April
2007.

^[192] Rothman, C.,
Communication with the Social Justice Commissioner’s Office, 2 March
2007.

^[193] Mental Health
(Criminal Procedure) Act 1990 (NSW),
s32.

^[194] Mental Health
(Criminal Procedure) Act 1990 (NSW),
s32.

^[195] Bamblett, A.,
Communication with the Social Justice Commissioner’s Office, 30 April
2007.

^[196] Perlinski, A.,
Communication with the Social Justice Commissioner’s Office, 20 March
2007.

^[197] Perlinski, A.,
Communication with the Social Justice Commissioner’s Office, 20 March
2007.

^[198] Fishburn, K.,
Communication with the Social Justice Commissioner’s Office, 7 March
2007.

^[199] Report provided to
author on 29 April 2007.

^[200] Report provided to author on 29 April
2007.

^[201] Report provided to
the Social Justice Commissioner’s Office on 29 April
2007.

^[202] Bamblett, L.,
Communication with the Social Justice Commissioner’s Office, 30 April
2007.

^[203] Bamblett, L.,
Communication with the Social Justice Commissioner’s Office, 30 April
2007.

^[204] Victorian
Department of Justice, Victorian Aboriginal Justice Agreement Phase 2, Melbourne, June 2006.

^[205] Bamblett, L., Communication with the Social Justice Commissioner’s Office,
30 April 2007.

^[206] Department
of Corrective Services, Interim Intensive Supervision Program Evaluation
Report, November 2006, provided to the
author.

^[207] McCoy, M.,
Communication with the Social Justice Commissioner’s Office, 20 April
2007.

^[208] Narkle, P.,
Communication with the Social Justice Commissioner’s Office, 20 April
2007.

^[209] Rochester, T.,
Communication with the Social Justice Commissioner’s Office, 20 April
2007.

^[210] Narkle, P.,
Communication with the Social Justice Commissioner’s Office, 20 April
2007.

^[211] Rochester, T.,
Communication with the Social Justice Commissioner’s Office, 20 March
2007.

^[212] Narkle, P.,
Communication with the Social Justice Commissioner’s Office, 20 March
2007.