Indigenous young people with cognitive disabilities

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

Part 2

What do we know about Indigenous young people with cognitive disabilities and/ or mental health issues?

Back to Contents

• a) Human Rights and Indigenous young people with cognitive disabilities and mental health issues
• b) Indigenous young people with cognitive disabilities and mental health issues and the juvenile justice system: What are the connections?
  • Incidence of cognitive disabilities and mental health issues in the criminal justice system
  • Incidence of young people with cognitive disabilities and mental health issues at risk of entering the juvenile justice system
  • Limitations of the data: Identification and Indigenous concepts of disability
• c) Indigenous young people with cognitive disabilities and mental health problems in context: Issues in development, education and the juvenile justice system
  • Developmental and social determinants of cognitive disabilities and mental health issues in Indigenous communities
  • Education and Cognitive Disabilities: Foundations for success or pathways to offending?
  • Explanations for the over representation of people with cognitive disabilities in the criminal justice system
  • Explanations for the over representation of people with mental health problems in the criminal justice system
  • Substance use, cognitive disabilities and mental health issues
• d) What works: Interventions for Indigenous young people with cognitive disabilities and mental health issues
  • Crime Prevention
  • Crime Prevention in Indigenous Communities: Important Issues
  • Early Intervention
  • The risks of early intervention and Indigenous communities
  • Early intervention for Indigenous young people with cognitive disabilities and mental health issues
  • Diversion
  • Impact of Diversion
  • Diversion and Indigenous young people
  • Diversion for Indigenous young people with cognitive disabilities and mental health problems
• e) Summary of key findings and issues from the literature

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This section outlines current knowledge around Indigenous young people with cognitive disabilities and/ or mental health issues. It introduces concepts and best practice models from Australia and internationally.

As previously stated, cognitive disabilities and mental health problems are not interchangeable. The specific dynamics of each in relation to ‘at risk’ or offending behaviour may therefore be different. Where possible, cognitive disabilities and/ or mental health issues will be delineated throughout the literature review.

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a) Human rights and Indigenous young people with cognitive disabilities and/ or mental health issues

Human rights are an important point of reference for considering what should happen for Indigenous young people with cognitive disabilities and/ or mental health issues.

The first attempt to provide an international human rights framework to the operation of juvenile justice was the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) in 1985. In 1990 the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the JDL Rules) were adopted.

However, more significantly, in 1990 the United Nations Convention on the Rights of the Child (UNCRC) established minimum standards of treatment for all children. 192 countries have ratified the UNCRC making it the most widely adopted international convention.^[9] Many of the articles directly relate to children in conflict with the law.

According to the United Nations Committee on the Rights of the Child who monitor the implementation of the UNCRC, the leading principles relevant to juvenile justice are:

• Non discrimination (article 2) - States must take necessary action to ensure that children are treated equally with particular attention to ‘defacto discrimination and disparities’^[10] that effect vulnerable groups of children such as ‘children who are indigenous...children with disabilities and children who are repeatedly in contact with the law (recidivists)’.^[11]
• Best interests of the child (article 3) - must be the primary consideration in the context of juvenile justice. It recognises that children differ from adults in their ‘physical and psychological developments, and their emotional and educational needs’^[12] and as such the primary objectives of the juvenile justice system should be ‘rehabilitation and restorative justice objectives’. ^[13]
• The right to life, survival and development (article 6) - juvenile justice should support the child’s development. Therefore, article 37 (b) explicitly states that deprivation of liberty, including arrest, detention and imprisonment, should be used only as a measure of the last resort and for the shortest appropriate period of time.^[14]
• Dignity (article 40 (1)) – Treatment should be consistent with the ‘the child’s sense of dignity and worth. Treatment should ‘reinforce the child’s respect for the human rights and freedoms of others’.^[15] ‘If police, prosecutors, judges and probation officers, do not fully respect and protect these guarantees, how can they expect that with such poor examples the child will respect the human rights and fundamental freedoms of others?’^[16] Treatment should take the child’s age into account and promote reintegration into society. More broadly, this places a requirement on juvenile justice workers to be ‘knowledgeable about child development, the dynamic and continuing growth of children, what is appropriate to their well-being and the pervasive forms of violence against children’.^[17] Finally, all forms of violence against children in contact with the juvenile justice system should be prohibited and prevented.

These minimum standards are of direct relevance to the lives of Indigenous young people with cognitive disabilities and/ or mental health issues. We have already seen how the treatment of Corey Brough, at the time an Indigenous juvenile with an intellectual disability, was upheld as a violation of his right to be treated with dignity. Given the anecdotal evidence from our consultations, this case could well be just the tip of the iceberg.

For instance, every time an Indigenous child with a cognitive disability or mental health issues is held in custody because there is nowhere else for them to go, this is discrimination. Every time the juvenile justice system fails in their knowledge of the developmental and mental health issues and places an Indigenous child in an inappropriate and unsupported placement, this is undermining their sense of dignity and worth.

The United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) (1990) establishes the necessity of crime prevention in dealing with juvenile crime. The Riyadh Guidelines also set out fundamental principles around:

• general prevention;
• socialisation processes (through family, education and community support);
• social policy;
• legislation and juvenile administration; and
• research, policy development and coordination.

This reinforces the need for early intervention and diversionary options for all children, drawing particular attention to vulnerable groups like Indigenous young people with cognitive disabilities and/ or mental health issues. Relevant provisions of the guidelines are found in Text Box 1.

The Declaration on the Rights of Mentally Retarded Persons (1971) and the Declaration on the Rights of Disabled People (1975) are also relevant to the rights of Indigenous young people with cognitive disabilities and/ or mental health issues. These instruments set out basic rights such as equal access to education, employment and promote integration of disabled people wherever possible.

The newly adopted Convention on the Rights of People with Disabilities comprehensively sets out rights which are relevant to Indigenous young people with cognitive disabilities and/ or mental health issues. The Convention was adopted by the General Assembly on 13 December 2006 and is in the process of being signed and ratified by governments before it comes into force. The Australian Government signed the Convention on 30 March 2007. Some pertinent provisions are found in Text Box 2

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b) Indigenous young people with cognitive disabilities and/ or mental health issues and the juvenile justice system: What are the connections?

There is a long standing contention in the literature that cognitive disabilities and/ or mental health issues are connected to offending behaviour and delinquency. There is evidence that these groups of young people are over represented in the juvenile justice system. However, there is no real consensus on how or why this is the case. In particular, there is even less known about how this affects groups such as Indigenous young people.

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Incidence of cognitive disabilities/ mental health issues in the criminal justice system

Establishing the incidence of cognitive disability and/ or mental health issues amongst young people in contact with the criminal justice system is not a simple task. Unlike other personal and social characteristics that are routinely measured in statistical studies, cognitive disability and/ or mental health issues are not always observable or stable. They require specialist assessment to confirm a diagnosis. Few criminal justice agencies formally collect disability data on a regular basis and even fewer research studies have been undertaken in this area.

The only comprehensive health status study of a juvenile offending population conducted in Australia has been a collaborative project between the University of Sydney, NSW Department of Juvenile Justice and Justice Health. The Young People in Custody Health Survey^[18] and Young People on Community Orders Health Survey ^[19] provided detailed health data, including cognitive disability/ mental health status for young people in custodial facilities and on community based supervision orders in NSW.

Based on a culture fair estimate, 10% of the Indigenous sample in custody could be diagnosed with an intellectual disability.^[20] On community based orders, a culture fair estimate of Indigenous young people with an intellectual disability represents 8% of the sample.^[21] Given that at least 2-3% of the general population is estimated to have an intellectual disability,^[22] this is means that Indigenous young people in contact with the juvenile justice system are 4 to 5 times more likely to have an intellectual disability than the general population.

These figures could be an under representation of intellectual disability as several participants did not complete the full assessment.^[23] Furthermore, the survey sample for community based orders was predominantly drawn from urban areas, leading to an under representation of the large number Indigenous clients living in rural and remote parts of NSW.

The Young People in Custody Health Survey and Young People on Community Based Orders Health Survey both found a high level of mental illness amongst their population sample. Of the young people in custody:

• 88% reported mild, moderate or severe symptoms consistent with a clinical disorder;^[24] and
• 8% of males, and 12 % of females in custody reported attempting suicide.^[25]

For the young people on community based orders:

• 40% reported severe symptoms consistent with a clinical disorder;^[26] and
• 9% had attempted suicide in the past 12 months.^[27]

These surveys did not provide a breakdown for mental health issues amongst Indigenous participants.^[28]

Research on intellectual disability amongst adult prison populations also contributes to our knowledge about this group, given that most offenders would have had a cognitive disability from an early age. The NSW Law Reform Commission report, People with an Intellectual Disability and the Criminal Justice System found that people with an intellectual disability are over represented as offenders in the criminal justice system.^[29] At least 12-13% of the NSW prison population have an intellectual disability, equating to four to five times the rate in the general population.^[30]

The NSW Law Reform Commission research also shows that people with intellectual disabilities are over represented at all stages of the criminal justice system. Hayes found that more than one in three people appearing before a local court on criminal charges experienced significant intellectual deficits.^[31]

Offenders with mental illness are over represented in the adult prison population. A NSW Corrections Health Survey found that 46% of reception inmates and 38% of sentenced inmates had suffered a mental disorder in the previous 12 months.^[32] When a broader definition of 'any psychiatric disorder' was used, it was found that 74% of the NSW inmate population was affected.^[33] A study by the Schizophrenia Fellowship of NSW estimated 60% of people entering prison had an active mental illness.^[34] Once again, there is no breakdown for Indigenous offenders available.

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Incidence Indigenous young people with cognitive disabilities/ mental health issues ‘at risk’ of entering the juvenile justice system

Indigenous young people are already at a much greater risk of contact with the criminal justice system. Nationally, Indigenous young people are 23 times more likely to be placed in detention than non-Indigenous young people.^[35] Adding cognitive disabilities and/ or mental health issues into the mix increases a young person’s disadvantage, and therefore, risk of contact with the criminal justice system.

Progression into the criminal justice system is not a fait accompli. Not all young people with cognitive disabilities or mental health problems go on to become offenders. However, they do appear to be over represented in the offending population. Possible explanations for over representation in the criminal justice system will be discussed in detail later.

The incidence of cognitive disabilities and mental health problems in the Indigenous community may shed some light on the extent of these issues, but once again the data is fragmentary.

The most comprehensive study of the mental health and well being of Indigenous children and young people is the Western Australian Aboriginal Child Health Survey (WAACHS). Based on a sample of 5,289 Aboriginal children and young people up to 17 years of age, it provides data on the social and emotional well being of Aboriginal children throughout Western Australia.^[36]

By administering the Strengths and Difficulties Questionnaire, the WAACHS measured a young person’s risk of emotional and behavioural difficulties. This does not actually measure the number of young people with diagnosed mental health problems but is indicative of areas of concern that could lead to diagnosis. The Western Australian Aboriginal Child Health Survey found that:

An estimated 26% of Aboriginal children aged 4-11 years were at high risk of clinically significant emotional or behavioural difficulties, compared with 17% of children in the non-Aboriginal population from the same age group.

For Aboriginal children aged 12-17 years, 21% were at high risk of clinically significant emotional or behavioural difficulties, compared with 13% of children in the non-Aboriginal population from the same age group. ^[37]

Also related to mental health status, the survey found that over one in six of the Indigenous young people aged 12-17 years had seriously thought about committing suicide in the 12 months prior to the survey. Within this, 39% had actually attempted suicide during the same period of time.^[38]

Literature about the incidence of cognitive disability in the Indigenous population is equally sparse. Again in Western Australia, an analysis by Glasson, Sullivan, Hussain and Bittles of the Disability Services Commission database of clients dating back to 1953 provides some assessment of intellectual disability in the Western Australian context.^[39] They found that Indigenous people constituted 7.4% of all the cases registered for Intellectual Disability support services, although Indigenous people only represent 3.5% of the population.^[40] This is approximately double the expected rate given the population size. While this data is not specific to young people, the authors note that most of the clients were referred to Disability Services Commission during their early school years.^[41]

Consistent with the over representation found by Glasson et al., another study of Western Australian children born between 1983-1992 found that Indigenous children were twice as likely as non Indigenous children to have an intellectual disability.^[42] This study also considered data collected from schools, as well as disability services.

Data from the education system is a potentially useful indicator of the incidence of Indigenous young people for cognitive disabilities. Based on a review of Aboriginal education in NSW conducted by the New South Wales Aboriginal Education Consultative Group, Indigenous students comprised 20% of all behaviour disorder classes and 14% of classes for mild intellectual disability.^[43] The review went to point out that the over representation of Indigenous young people assessed as having disabilities was so extreme that:

The proportion of Aboriginal students placed in specialist classes and units is greater than the proportion of Aboriginal students in the student population as a whole.^[44]

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Limitations of the data: Identification and Indigenous concepts of disability

The reported incidence of cognitive disabilities and/ or mental health issues is intrinsically linked to how these conditions are assessed or diagnosed. As alarming as these rates of mental health and cognitive disabilities are, some experts argue that it is likely that they are an under representation of the extent of the problem in Indigenous communities. On the other hand, real concerns around the cultural appropriateness of assessment tools and processes have the potential to artificially inflate these numbers. This contradiction means that the true rates of cognitive disabilities and/ or mental health issues are not currently known.

The cultural meanings ascribed to disabilities and mental illness can affect the number of young people identified as having either a cognitive disability or mental health problem. It is argued that Indigenous communities are less likely to label problematic behaviour as a cognitive disability or mental health problem.^[45] Instead, the behaviour is accepted as part of the person’s personality or seen in terms of their relationships with others rather than a medical problem.^[46]

Disability issues are secondary to cultural identity. Consultations with Indigenous people in Western Australia with disabilities, their families, carers and service providers support this view. This statement from one family member is representative of this finding:

My daughter’s Aboriginality comes before her disability. It is very important to me that services providers understand that she is Aboriginal first and then has a disability.^[47]

This has implications for accessibility of disability specific services for Indigenous people.

Consultations with Indigenous people in Western Australia found that Indigenous families considered themselves more accepting and supportive of people with disabilities than non Indigenous people. Due to these perceptions of inclusion and support, those consulted also stated that they were less likely to see the need for disability support services:

Family members provide support. In our house there are three generations - they all provide care to my two sons. The family felt that because of this we did not need a lot of contact with the Disability Services Commission.^[48]

This supports other research that problematises the reported incidence of cognitive disability/ mental health problems based on the number of people accessing disability or mental health services.

In terms of mental health issues, Vicary and Westerman argue that Indigenous concepts of mental health are holistic. They are more likely to attribute sickness to external forces or cultural reasons. This prevents people from presenting for service and being counted in service delivery statistics. Fear of Western mental health treatment may also be a barrier to accessing services. This is particularly pertinent when Indigenous people have seen community members taken from their communities and ‘institutionalised away from their country and family’.^[49]

Identification and assessment of cognitive disabilities and/ or mental health issues also impacts on data collection. A significant barrier is the masking of disability by a range of cultural factors such as:

• English as a second language;
• hearing impairment;
• immediate effects of alcohol and/ or other drugs;
• cultural factors such as shame influencing the type of interaction with criminal justice staff;
• the impact of inadequate educational opportunities with regard to literacy and numeracy; and
• racism.^[50]

In effect, if a young Indigenous person with an unidentified cognitive disability comes into contact with the juvenile justice system; it is likely that their inability to comprehend the process may be attributed to one of the factors above, rather than provoking suspicion that a young person may actually have a disability which is impeding their understanding.

At the other end of spectrum, there is concern that the incidence of cognitive disability for Indigenous young people is inflated due to culturally inappropriate assessment tools which measure intelligence in a profoundly anglo-centric fashion. Because Indigenous children do not possess the assumed cultural knowledge of the dominant culture, they are disadvantaged in testing and likely to score lower.

These conflicting views highlight the partial, contingent nature of the data about cognitive disabilities and/ or mental health issues among Indigenous young people. However, at the end of the day, some experts argue that prevalence is essentially a red herring issue.^[51] The real issues for consideration are the reasons behind over representation in the special education and juvenile justice in the first place, and consequent provision of appropriate early interventions, diversionary programs and treatments to meet the needs of these young people.

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c) Indigenous young people with cognitive disabilities and mental health problems in context: Issues in development, education and the juvenile justice system

Developmental and social determinants of cognitive disabilities and/ or mental health issues in Indigenous communities

While the data regarding the incidence of cognitive disabilities and/ or mental health issues in the Indigenous community should be treated with caution, there is more agreement in the literature about why a disproportionate number of Indigenous young people experience these issues.

There is no denying the significant social, economic and health inequality facing the Indigenous community. International studies have shown the link between lower socioeconomic status and increased risk of mild to moderate intellectual disability, with Glasson et al arguing:

The degraded physical environments in which many Indigenous Australians live confer a further increased risk of general infections (some of which can lead to ID, eg. Meningitis)^[52]

Based on their sample, Glasson et al also found non genetic prenatal and perinatal risk factors known to be associated with cognitive disability in 36% of cases. These factors included maternal substance use, physical trauma, low birth weight and infections.^[53]

Based on Western Australian data Foetal Alcohol Syndrome is estimated to affect 2.97 Indigenous children per thousand live births.^[54] Children affected by Fetal Alcohol Syndrome can experience neurological damage, which is expressed as hyperactivity, behavioural problems, learning problems, learning disabilities, and a general inability to function normally.

Foetal Alcohol Syndrome was raised as a concern during consultations for phase one of this project.^[55] Foetal Alcohol Syndrome is a relatively new research area in Australia, with very little data collected (partly due to the lack of paediatric expertise to actually diagnose the condition). However, Foetal Alcohol Syndrome has received more attention in Canada and the United States of America with some studies in Canada estimating that FAS in Indigenous children may be as high as 189 per 1,000; that is nearly 20% of all births.^[56] This is an area for further investigation in Australia.

An explanation of the high levels of mental health issues amongst Indigenous young people also draws on the social, economic and cultural context. Or in other words, we can explain the higher incidence of mental illness and cognitive disability in Indigenous young people through the social determinants of health^[57] and social exclusion of Indigenous young people. Things such as education, housing, transport, employment, working conditions, enough money, clean drinking water, sanitation, and a good start to life are just some of the social determinants of health. The broad social environment that children and young people live in are intrinsically linked to their cognitive and mental health outcomes.

Shaped by these social circumstances, the family is the social unit which seems to have the greatest impact on child development and wellbeing. The Western Australian Aboriginal Child Health Survey publication, The Social and Emotional Wellbeing of Aboriginal Children and Young People empirically demonstrates the interaction between family, household factors and risk of clinically significant emotional or behavioural difficulties.

This study measured major life stress events which included illness, family break-up, arrests or financial difficulties. Over one in five Indigenous children had experienced seven or more major life stress events in the preceding 12 months and were subsequently five and a half times more likely to be at high risk of significant emotional or behavioural difficulties than children who experienced less stress.^[58]

Family circumstances and parenting contributed to the risk of significant emotional or behavioural difficulties. Of the one in four children in the sample who were living in homes with a poor level of parenting, these children were four times as likely to be in the high risk group as compared to those children living with good quality parenting.^[59] One in five children were living in families that functioned poorly (based on description of communication, decision making, emotional support, time spent together and family cooperation) and were twice as likely to be at high risk as children living in well functioning families.^[60]

Family circumstances are influenced by financial difficulty, family conflict, substance use, arrests and poor health, but are also affected by the intergenerational trauma caused by the forced separations of the Stolen Generation. The Western Australian Aboriginal Child Health Survey found that 12% of their sample was looked after by a carer who had been forcibly removed. These children were 2.3 times more likely to be at high risk of clinically significant emotional or behavioural difficulties.^[61] This is consistent with the findings and recommendations of the Bringing them home report which highlighted the devastating intergenerational effects of forced removals.

Collective health determinants also impact on the mental health of Indigenous young people. Experiences of racism have been linked to mental health issues, with a 2003 review of 53 studies in the United States finding that mental health declined as experiences of racism increased.^[62] We know that Indigenous young people can face racism and discrimination in a number of arenas; from peers, school, interaction with police and broader society. These interactions can decrease sense of self worth and generate anger, leading to both internalising and externalising mental health issues.

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Education and cognitive disabilities: Foundation for success or pathway to offending?

There is a very clear body of evidence that links low educational achievement to involvement in the criminal justice system. The NSW Bureau of Crime Statistics and Research analysed the 2002 National Aboriginal and Torres Strait Islander Social Survey and found a relationship between educational attainment and involvement with the criminal justice system.^[63] Not surprisingly, respondents who stayed at school until year 12 were less likely to be charged or imprisoned. Their chance of being charged was only one in five and chance of imprisonment was one in thirty. In contrast, respondents who completed year nine or below had a one in 2.4 chance of being charged with an offence and one in ten chance of being imprisoned.^[64]

When we look at these grim statistics, we need to consider the potential impact of cognitive disability or mental health on a young person’s experience of education. Cognitive disabilities by their very nature, lead to difficulties in learning, comprehending and managing behaviour in structured environments such as school. The Western Australian Aboriginal Child Health Survey found that children with a high risk of emotional or behavioural problems were almost three times as likely as other children to have low academic performance.^[65]

Therefore, these young people will require additional support and possibly special educational assistance to be able to achieve good education outcomes. These issues have not been dealt with systematically. The Western Australian Aboriginal Child Health Survey found that no real gains had been made to achieve equality in educational outcomes between Indigenous and non Indigenous children in the past 30 years.^[66]

Correct assessment and diagnosis of a cognitive disability is the first step to improve the poor state of educational outcomes for these children. There are significant concerns about the cultural appropriateness of standard intelligence tests which are used to identify an intellectual disability. Many of these tests of intelligence, social and language abilities are culturally biased, disadvantaging Indigenous young people. These difficulties are further compounded when English may be the second or third language spoken for some Indigenous children, especially from remote communities.^[67]

The cultural bias inherent in the testing processes causes real problems for Indigenous children. If ‘culture fair’ measures are not adopted, children can be inaccurately diagnosed as having a cognitive disability. Because of this, some experts argue that Indigenous young people are over - diagnosed with cognitive disabilities and placed in special education classes. The NSW Review of Aboriginal Education found that Indigenous young people are grossly over represented in special education. Based on population statistics, Indigenous students should comprise of 3.5% of all the children in special schooling in NSW. Instead, they make up 20% of all students in behaviour disorder classes, 14% of all students in classes for mild intellectual disability. They also make up the majority of students in juvenile justice classes.^[68]

Loretta De Plevitz has argued that these alarming figures are a result of systemic discrimination and cultural bias in assessment. Her comparison the Aboriginal Education data with the NSW Young People in Custody Health Survey data highlighted some interesting disparities.^[69] The NSW Young People in Custody Health Survey used the standard intelligence test, the Wechsler Abbreviated Scale of Intelligence (WASI) on all the participants (57% were Indigenous). 74% of the participants scored below average, compared to an expected 25% on a general sample.^[70] Assuming that the low scores were evenly spread across Indigenous and non Indigenous participants, approximately three quarters would be assessed as below averaged intelligence.

A further measure of actual academic achievements in literacy and numeracy, found that 85% of participants fell below the average range, and 37% had scores consistent with an intellectual disability. However, when the NSW Young People in Custody Health Survey researchers used a culture fair assessment of intelligence, using the Performance (non verbal) IQ scale, the average score of Indigenous participants was much closer to Australian norms. When all of these measures are balanced out, 10% of Indigenous detainees could actually be diagnosed with an intellectual disability.^[71]

What this all means, is that despite the majority of these young people having difficultly ‘comprehending, communicating and problem solving using language and numbers’^[72] their practical reasoning was close to mainstream norms for most of the participants. Low achievement is a product of poor engagement with education, transience and other compounding factors (such as Otis Media), not necessarily an intellectual disability.

A similar argument can be put forward around the over representation of Indigenous young people in special behaviour schools. The parents’ submission to the NSW Education Review expressed the view that:

too many of their students were disciplined, suspended or referred to behaviour programmes because schools did not have the cultural knowledge to respond appropriately to behaviour that was acceptable in Indigenous communities.^[73]

Problem behaviour consigns Indigenous young people to the ‘too hard basket’, rather than being dealt with it in a holistic manner, looking at the causes of behaviour.

The over representation of Indigenous students in special schooling may have more to do with how the education system assesses these young people and inadequate support in mainstream education, rather than higher rates of intellectual or cognitive disability. That is not to ignore their need for remedial education to bring levels of literacy and numeracy up to a higher standard. However, labelling a young person with an intellectual disability may further damage their self confidence, make school another failure, and increase the likelihood of disengagement from education.

It can also constitute indirect discrimination with de Plevitz arguing that current discrimination law may apply to this situation. There are three elements of indirect discrimination which need to be met:

1. Has a term of condition been imposed? This means that in order to obtain mainstream education a ‘student has to conform to Eurocentric cultural norms embedded in intelligence tests, and educators expectations.’^[74]

2. Can Indigenous students comply with the requirements? There is judicial support for a broad definition of compliance which takes cultural background and abilities into account (for instance Mandla v Dowell Lee, House of Lords 1983, State Housing Commission v Martin, Court of Appeal, Western Australia, 1998 and Waters v Public Transport Corporation, High Court 1991).

The most relevant recent precedent, Hurst v State of Queensland (Full Court Federal Court , 2006) found that just because a hearing impaired student could cope in class did not mean that they had the opportunity to ‘reach his or her full potential’.^[75] de Plevitz argues:

This could apply to an Indigenous student placed without justification in special schooling. Those circumstances would deny the student the opportunity to reach his or her full potential and would constitute a serious disadvantage.^[76]

3. Can a higher proportion of non- Indigenous school students meet the criteria?

If these elements are met, de Plevitz suggests that a case for indirect discrimination could be mounted for Indigenous students who have been wrongly allocated to special education.

If these elements are met, de Plevitz suggests that a case for indirect discrimination could be mounted for Indigenous students who have been wrongly allocated to special education.

But leaving aside problems of assessment, once a young person is identified with a cognitive disability, the next key issue is what is actually put in place to support the young person and how the system accommodates their needs. What research there is, suggests that the education system is not doing this well at all, evidenced by the low retention rate of Indigenous young people in education.

Indigenous children with cognitive disabilities have the same need for culturally appropriate and inclusive environments as other children. Yet the South Australian Ministerial Task Group found that:

Aboriginal children with disabilities are often culturally isolated in their schooling, whether in a regular classroom, special class or special school. This can occur when their disability related needs are seen as more important than their Aboriginality and need for cultural connection... The resultant cultural isolation can adversely affect the child’s social and psychological development as well as their educational learning.^[77]

There is clearly a need for greater staff awareness of specific cultural needs and Aboriginal education strategies which recognise that ‘school is not a comfortable place for many Aboriginal children, with or without a disability.’^[78]

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Explanations for the over representation of people with cognitive disabilities in the criminal justice system

Most experts in the area acknowledge the over representation of people with cognitive disabilities in the criminal justice system but there is no real consensus about why this is the case. Hayes identifies the main explanations as:

• school failure hypothesis;
• susceptibility hypothesis;
• differential treatment hypothesis;
• socio demographic characteristics hypothesis; and
• response bias hypothesis.^[79]

Each of these explanations implies their own solution to the problem of over representation and are therefore very important in any analysis of policy and practice.

The school failure hypothesis suggests that due to difficulties with learning usually associated with cognitive disabilities, these young people are more likely to leave school early. As discussed above, criminologists have shown that young people who leave school early are more likely to drift towards anti social peers and delinquent behaviour.^[80] Therefore, appropriate interventions should support young people with cognitive disability to remain in school, through special education (where appropriate) and support programs.

The susceptibility hypothesis suggests that young people with cognitive disabilities are more likely to become involved in delinquent or offending behaviour due to:

personality attributes, including impulsivity, emotional liability, inadequate understanding of causal relationships, and poor reception of social cues.^[81]

In some cases, this vulnerability can be exploited by more sophisticated delinquent peers who involve them in offending. A desire to ‘belong’ to a peer group, especially after previous experiences of bullying due to disability, can also motivate young people with cognitive disabilities to commit crime in order to ‘fit it’.

The differential treatment hypothesis argues that young people with cognitive disabilities are not necessarily more delinquent than other young people, but are dealt with differently by the criminal justice system. Some evidence suggests that these young people are more likely to be arrested and brought before court. Professor Hayes gave evidence at the NSW Legislative Standing Committee on Law Justice, stating:

I do not think police deliberately set out to victimise or harass people who have intellectual disabilities. I just think they often see them as smart, uncooperative recidivists. They see their poor behaviour as being smart rather than being an aspect of a disability. Of course, the person who has the disability has spent many years trying to hide their disability, so they would rather appear smart and streetwise than disabled.^[82]

Other factors that can result in differential treatment for young people with cognitive disabilities are that they:

• may not have their rights explained in a way they can understand;
• may be more easily persuaded to confess to a crime they haven’t committed;
• may be more often refused bail due to previous non breaches of bail (which may be due to lack of support, or a lack of understanding of their obligations); and
• may be more likely to receive a custodial sentence due to the lack of alternative placements in the community.^[83]

The last two points highlight the potential criminalisation of welfare needs of young people with cognitive disabilities. That is, their social circumstances may incline the court to take more restrictive action in an attempt to keep young people ‘safe’, even if this means placing them in juvenile custody.

Combating differential treatment requires a two pronged attack. Firstly, training and awareness programs need to ensure criminal justice professionals deal sensitively with young people. Secondly, there needs to be adequate welfare, accommodation and support services to prevent the inappropriate drift into the criminal justice system due to lack of support in the community.

The response bias hypothesis proposes that young people with cognitive disabilities commit crime at the same rate as young people without cognitive disabilities but are more likely to get caught. The NSW Legislative Standing Committee on Law and Justice about Crime Prevention through Social Support (2000) heard evidence from the Guardianship Tribunal that people with cognitive disabilities:

Simply get caught, to be perfectly honest. People with intellectual disabilities lack the sophistication and tend to be caught out in the more street - type offences or petty theft because they do it so obviously and they often do it in groups with other people who are better intellectually equipped who know when to disappear.^[84]

Finally, the socio-demographic characteristics hypothesis attempts to explain over representation through the greater number of young people with cognitive disabilities in disadvantaged groups, who are in turn are more likely to commit crime. While the actual evidence for this claim is contested, we do know that people with cognitive disabilities in the criminal justice system seem to experience a greater burden of disadvantage.

Literature linking cognitive disabilities to broader socio-economic, cultural and even historical factors highlights the extreme marginalisation that these young people face. The NSW Law Reform Commission agued that many people with intellectual disability were in fact ‘doubly disadvantaged’:

Apart from the fact that many people with an intellectual disability may belong to the lowest socio-economic classes, people with an intellectual disability many also be doubly disadvantaged by their youth (juveniles), indigenous status (Aborigines), ethnicity (people from non English speaking backgrounds), mental illness, drug or alcohol addiction, physical disability, homosexuality or gender.^[85]

Further, the NSW Law Reform Committee report on Crime and People with an Intellectual Disability also cited a Victorian study looking at adult offenders in specialist prison units for people with intellectual disabilities. Researchers found that prisoners with intellectual disabilities are:

even more than the ‘mainstream’ prison population, experience unemployment, major educational disadvantages, childhood institutionalisation, disrupted or disturbed families of origin, frequent contact with psychiatric services, alcoholism, drug addiction and poor social skills.^[86]

We also know that people with cognitive disability are more likely to be victims of crime, with Simpson and Rogers suggesting that between 50 – 90% of women with intellectual disabilities have experienced sexual assault or sexual exploitation.^[87]

Young Indigenous people with cognitive disabilities or mental illness are therefore not only doubly disadvantaged, but multiply disadvantaged. According to Sitori, ‘cognitive disability is likely to be viewed as simply one more hardship that Indigenous people must endure’.^[88] Within this overwhelming set of circumstances, cognitive disabilities and/ or mental health issues are less likely to be picked up, particularly at an early stage when preventative interventions can be put in place. This also means that interventions, which only target cognitive disability, are likely to be ineffective for Indigenous young people. Instead, interventions need a broad, holistic base and long term focus if they are going to make a difference.

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Explanations for the over representation of people with mental health problems in the criminal justice system

The over representation of people with mental illness in the criminal justice system has been the topic of a number of reports and inquiries since the report of National Inquiry into the Human Rights of People with Mental Illness (the Burdekin Report) in 1993. Since then, HREOC has released Not For Service Report: Experiences of injustice and despair in mental health care in Australia in 2005 that outlines a desperate lack of services and coordination for people with mental illness. Also in 2005, the Senate Standing Committee of Mental Health considered the interaction between mentally ill people and the criminal justice system. In all of these reports, the common theme has been that the lack of mental health and associated services has left people ‘consigned to incarceration rather than treatment’.^[89]

Deinstitutionalisation of people with mental illness been identified as a cause of over representation. People who would have previously been held in mental hospitals are now held in prison instead because of a lack of community supports and accommodation for people with mental illness. In effect, the over representation of people with mental illness in the prison system is in fact, a re-institutionalisation of this group.^[90]

Issues of homelessness cannot be ignored. Homelessness puts people with mental illness at greater risk of contact with the police, particularly for minor public order offences. Living on the streets without secure income can also lead to theft and crimes in order to survive. Lack of secure accommodation is also associated with a lower likelihood of obtaining bail.

The effect of incarceration can cause or exacerbate mental health problems, leading to a vicious revolving door between custody and the community. It has been argued since the Royal Commission into Aboriginal Deaths in Custody that these effects are more pronounced for Indigenous people who suffer away from family, community and country.

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Substance use, cognitive disabilities and mental health issues

Substance drug and alcohol use bears special attention in relation to both cognitive disabilities and/ or mental health issues. The link between acquired brain injury, a permanent cognitive disability and petrol sniffing is well known. Petrol sniffing has been a major problem for remote Indigenous communities where other drugs are much harder to obtain. Brain damage can occur from early stages of abuse. This neurological damage causes difficulties in memory, concentration, attention, learning and behaviour management.

The Commonwealth government subsidises Opal fuel (a type of petrol that doesn’t produce a high) into 70 different Indigenous communities. More resources have also been put into education and rehabilitation programs. Since the introduction of Opal there has been a significant reduction in petrol sniffing^[91] although there is concern that young people are shifting to other substances such as paint, glue, cannabis and alcohol. These substances are also likely to lead to mental health issues.

The general consensus in the literature is that there is a relationship between drug use and mental illness. This is not necessarily a causal relationship and is dependant on other moderating genetic and environmental factors, but nonetheless suggests an area for concern and consideration. For instance, a 2005 study of remote Indigenous Northern Territory communities found that nearly one in two cannabis users experienced mental health effects related to cannabis use and 46% showed symptoms such as:

memory impairment, fragmented thought processes and confusion, indications of tolerance to the effects of the drug, withdrawal effects and difficulties in controlling consumption.^[92]

These finding have been replicated for a number of other substances, including alcohol and amphetamines.

There is now long overdue attention being paid to dual diagnosis issues. Dual diagnosis commonly refers to a combination of mental illness and substance use disorder (although many people have more that two diagnoses, which can also include cognitive disabilities).^[93] The Senate Standing Committee on Mental Health goes as far as to suggest that dual diagnosis is the ‘expectation not the exception’^[94] within the criminal justice system and that an overwhelming number of Indigenous young people are affected.

Self medication, where an individual uses drugs or alcohol to manage their mental illness symptoms is also well documented. It may be even more prevalent in Indigenous communities where there is mistrust, or poor access to mental health services. For young people, the Select Committee on Mental Health also found that some young people ‘assume an identity as drunk or drugged rather than mad because this is socially acceptable’.^[95]

Studies have shown that people with dual diagnosis come into contact with the criminal justice system more often than those with only a mental illness.^[96] Substance use is also a contributing factor in violent crime committed by mental ill people. The Victorian Institute of Forensic Mental Health found:

Just as substance abuse alone is a significant risk factor for violence, those who have both a substance abuse or dependence disorder and a major mental illness (ie. those with a so called dual diagnosis) also have been found to have an increased level of risk for violence. Dual diagnosis has been associated with high rates of violence and criminal behaviour.^[97]

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d) What works: Interventions for Indigenous young people with cognitive disabilities and/ or mental health issues

Crime Prevention

Early intervention and diversionary practices for Indigenous young people with cognitive disabilities and/ or mental health issues fall within the broad category of crime prevention. Crime prevention is commonly defined as:

A wide range of models and techniques, variously aimed at reducing opportunities for crime, enhancing social opportunities for individuals and groups, and facilitating social empowerment and institutional change.^[98]

Significant research has been conducted on models of crime prevention in Australia in recent years. Perhaps the most influential study is the Pathways to Prevention report^[99] by National Crime Prevention. Pathways to Prevention surveyed literature and developed a policy framework that has been implemented though Australian government funding.

The Pathways to Prevention report divides crime prevention strategies into four broad categories:

• Criminal justice crime prevention;
• Situational crime prevention;
• Social crime prevention; and
• Developmental crime prevention.

Criminal justice crime prevention includes strategies such as ‘traditional deterrence, incapacitation and rehabilitation strategies operated by law enforcement and criminal justice agencies’.^[100] For young Indigenous people with cognitive disabilities or mental health issues this could include diversion from formal criminal justice proceedings through cautions or conferencing, special court procedures or specialist rehabilitation programs administered by juvenile justice agencies.

Situational crime prevention includes strategies to make crime harder to commit through improving physical security and environmental design. This includes ‘target hardening’ such as improved lighting, locks, and increased opportunities for surveillance.

Social crime prevention includes community development approaches that seek to change the community people live, in order to change people’s behaviour. This leads to broad scope for intervention and can include ‘political action at the local level to empower residents, provide opportunities to young people, strengthen social infrastructure, and promote social justice’.^[101] Examples relevant to Indigenous young people with cognitive disabilities or mental health problems could include mentoring programs, recreational activities and educational support, as well as initiatives to increase the capacity of the entire community to prevent crime, such as Indigenous night patrols or justice groups.

Developmental crime prevention, the focus of the Pathways to Prevention report, is defined as:

Interventions to reduce the risk factors and increase protective factors that are hypothesised to have a significant effect on an individual’s adjustment at later points of development.^[102]

Developmental crime prevention specifically sets out to intervene at critical life transitions to prevent involvement in crime. Developmental crime prevention theorists argue that life is characterised by pathways that ‘fork out’ in a number of directions given the choices and opportunities along the way. At each ‘fork in the road’ an individual can successfully make a transition to the next stage of life or remain behind and go down a less successful path so that:

A person may follow an easy path to respectable middle age, or a painful path through teenage substance abuse, homelessness and early death.^[103]

Developmental crime prevention strategies use early intervention to assist children and young people to make these transitions successfully and thus, reduce the chances of them being involved in crime. Many early intervention strategies look at the very early years to try and give children a good start by decreasing ‘risk factors’ and increasing ‘protective factors’.

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Crime prevention in Indigenous communities

The preceding section has sketched the main concepts in crime prevention, however, we need to consider how, or indeed whether, they will be applicable in Indigenous communities.

Cunneen conducted an extensive review of the impact of crime prevention on Indigenous communities, drawing on examples from Australia, New Zealand, Canada and the United States.^[104] The three key themes in successful crime prevention strategies in Indigenous communities were the need for:

programs that enhance self determination, that are holistic in their approach and that result in empowerment rather than dependency.^[105]

The importance of self determination was also recognised by the NSW Standing Committee on Law and Justice (2000) report on Crime Prevention Through Social Support:

The starting point for effective crime prevention must be to give greater control over decision making and methods of prevention to the Aboriginal communities themselves. Solutions imposed from the outside are likely to, at best, further disempower already disadvantaged communities, and at worst lead to increases in crime as anger and alienation increases.^[106]

These lessons are just as relevant when we consider ways of working with Indigenous young people with cognitive disabilities or mental health issues.

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Early Intervention

Early intervention strategies fit within the developmental crime prevention perspective put forward by the Pathways to Prevention report. It is worth noting that early intervention ‘means intervention early in the pathway. This may or may not mean early in life.’^[107] This depends on individual circumstances. For instance, for an adolescent who has had an otherwise supportive and health upbringing but becomes involved in trouble with peers and is arrested, then a referral to a youth justice conference would be an example of an early intervention. On the other hand, if a young person comes from a context of community and intergenerational disadvantage and family conflict, they may benefit from early intervention such as family support from their very early years.^[108]

Essentially, programs should be put in place when a child or young person is at a difficult life transition point and may need extra assistance. Examples of life transitions phases are:

• early childhood;
• transition to primary school;
• transition to high school; and
• adolescence encompassing issues around peers, recreational opportunities, identity development.

Early intervention programs are based on reducing risk factors and increasing protective factors. The risk factors associated with youth offending are:

• prenatal and perinatal factors (e.g. low birth weight, young age of parent);
• low intelligence;
• disability;
• hyperactivity and impulsivity;
• poor parental supervision and discipline;
• family conflict and broken homes;
• large family size;
• parental criminality;
• socio - economic disadvantage;
• peer influences
• substance misuse;
• poor educational attainment; and
• community disadvantage.

Protective factors include:

• social competence;
• school achievement;
• above average intelligence;
• problem solving skills;
• supportive family;
• small family size;
• prosocial peers;
• attachment to community; and
• strong cultural identity.^[109]

Early intervention strategies are different for each circumstance. However, the literature does show that interventions are more likely to be effective if they target multiple risk factors. For instance, it is not much use to provide a school based early intervention program that doesn’t look at the family and community context that a child lives in.

They are also likely to be successful and sustainable if a holistic and participative approach to solution development and implementation are adopted and practiced.

There is strong support for the efficacy of early intervention both in Australia and overseas. Evidence suggests that early intervention can achieve reduction across a broad range of social disadvantages such as involvement in crime, child abuse and substance abuse. On the flip side, it is also linked to better educational outcomes, employment and income.^[110]

Early intervention is also cost effective. Research from the United States has shown that for every dollar spent on the Perry Preschool Project, $13 was saved. This occurred through reductions in the need for welfare assistance, special education, costs associated with the criminal justice system (including costs to victims, as well as increases in tax revenue due to the higher wage contributions of participants.^[111] These positive results were built on a long term investment of time and money. Given all of this, early intervention is not a silver bullet, but is certainly very promising.

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Early intervention and Indigenous communities: the risks of early intervention

Early intervention crime prevention strategies, like any social policy, need to be considered for their particular impact on Indigenous communities. It is acknowledged in the literature that a lot of what we know about early intervention is based on non- Indigenous populations. Specific work therefore needs to be undertaken to tailor these programs to meet the needs of Indigenous peoples.

This potential bias can be seen with risk factors that guide early intervention practices. A way to bridge this may be to adopt Indigenous specific risk and protective factors. Homel et al. argue that although the standard risk and protective factors apply to Indigenous young people, they need to be seen within a culturally, historically specific ‘lens’.^[112]

Homel et al. identify additional risk and protective factors for Indigenous young people. Relevant risk factors include:

• forced removal, including parental forced removal;
• dependence- meaning the erosion of self determination;
• institutional racism, particularly in the form of over policing of Indigenous people;
• cultural factors, for instance use of public space that often draws police attention; and
• alcohol use.^[113]

Protective factors include cultural resilience, strong family bonds and personal controls.^[114] In terms of personal controls, they cite a study which shows that Indigenous youth scored higher on self esteem and self worth than other young people with similar socioeconomic backgrounds.^[115] This may explain high levels of resilience.

Developmentally significant transition points may also be different for Indigenous young people. Based on the experience of setting up crime prevention programs with Indigenous youth, Armitage and Collins illustrate this point:

Our experience of working with Indigenous young people on early intervention/ crime prevention projects demonstrates that relatively few young Aboriginal people attend primary school, let along move into high school, higher education and the workforce. If these transition points are seen as critical periods for one’s development what are the ramifications for those who fail to experience these key milestones?^[116]

There is clearly a need to map culturally specific transition points, and in turn develop more responsive early intervention programs that ensure that young people, who do not follow traditional pathways, do not miss out on service provision.

Finally, there is a growing cynicism about early intervention in the United Kingdom, which cautions that early intervention can potentially:

justify a whole paraphernalia of surveillance and intervention based on the assumption that youth crime is an outcome of dysfunctional individuals and communities and that these individuals can be identified through an assessment process determined by experts.^[117]

While not wishing to undermine all the potential good that early intervention can play in the lives of Indigenous young people, this does reiterate the importance of community involvement. Community ownership of early intervention programs can avoid programs becoming another government imposition on communities, and undermine the potential for empowerment and crime prevention.

The implication that risk factors are inherent within dysfunctional individuals and communities also attributes blame to the individual and community rather than looking at the broader spectrum of social, cultural, economic, historical and political factors. We know that there is a need to develop positive stories and identities in Indigenous communities, not perpetuate negative, accusatory perceptions.

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Early intervention for Indigenous young people with cognitive disabilities or mental health issues?

A review of the literature showed no evaluations or reports of any early intervention programs exclusively aimed at Indigenous young people with cognitive disabilities or mental health issues, within a crime prevention framework. However, a number of commentators and reports identify what early intervention should look like for this group.

Just as the causes of cognitive disabilities and/ or mental health issues are diverse and complex, so too are the preventative interventions. Phase One of this research project consulted with community and stakeholders to look at points of early intervention for young people with cognitive disabilities. There was a consensus that socioeconomic circumstances impacted on poor childhood outcomes.^[118] There was also a strong desire for programs to tackle issues of Foetal Alcohol Syndrome, petrol sniffing, violence and poor nutrition and school retention.^[119] It recommended that any intervention which increases support and school retention to Indigenous students with cognitive disabilities has the potential to prevent crime, given the strong link between involvement with the criminal justice system and disengagement from education.

Table 1 below shows examples of early intervention projects from the literature and how they may work with Indigenous young people with cognitive disabilities and/ or mental health issues. For consistency, it is organised according to the developmental approach found in the Pathways to Prevention report.

This is by no means an exhaustive list of the options and but gives an idea of the breadth of early interventions and the connections with Indigenous young people with cognitive disabilities and mental health problems.

Table 1: Examples of Early Intervention Strategies

Text Box 3 illustrates some international best practice examples of early interventions. They are drawn for New Zealand and Canada and are either specifically target Indigenous communities, or work with a high proportion on Indigenous people and have adopted culturally sensitive practices.

It should also be noted that early intervention programs do not need to specifically target young people or children with cognitive disabilities or mental health problems to be effective. For instance, a mainstream home visiting service may assist a parent in developing confidence in their parenting skills, but it might also help identify any developmental delays early and lead to appropriate referral to specialist services.^[123]

Another example is Panyappi Indigenous Youth Mentoring Program. An outline of the evaluation can be found in Text Box 4 below. This is one of the very few Indigenous mentoring programs that has been evaluated and offers some lessons for other services.

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Diversion

Diversion refers to any ‘instances where young people are turned away from the more formal processes, procedures and sanctions of the criminal justice system’.^[131] Diversion occurs pre-arrest, pre-trial and pre- sentence. These diversions are often called the ‘front end’ diversions of the criminal justice system.

However, it would be remiss to exclude diversion from custody. Although the literature shows that young people should be diverted as early as possible, there is still a great deal of positive intervention that can occur once a young person is under the supervision of a juvenile justice agency. The involvement of a juvenile justice agency can be crucial in addressing cognitive disability or mental health issues. It is often the first time they may have been actually assessed as having a disability and have had the opportunity for intervention and support.

A background paper to the Second National Indigenous Justice Forum^[132] supports this broader view of diversion, calling for a five stage approach to diversion of Indigenous offenders. Table 2 outlines this approach to diversion.

Table 2: Model for Diversion of Indigenous Offenders

Source: Indigenous Issues Unit, Department of Justice Victoria and Jones, R. Diversion: A model for reducing Indigenous criminal justice over representation, Paper prepared for consideration at the Second National Indigenous Justice Forum November 2006, p 5.

It argues that:

This five- stage approach to diversion advances the idea that it is never too late to invest in diversion, and that the responsibility for diversion is not limited to the front end of the criminal justice process.^[133]

Phase One of this research report provided an overview of the diversionary schemes operating in Australia. In summary, the main mechanisms for diversion for young people are:

• oral or written warnings from Police;
• formal cautions from Police instead of arrest;
• victim- offender or family conferencing;
• referral to a community based program (intersecting with early intervention programs such as mentoring, social support, case management, recreation and cultural awareness);
• conditional bail, or supervised bail programs;
• youth drug courts (using ‘Griffith remand’ bail procedures to provide treatment prior to sentencing, with positive participation leading to more lenient sentencing and diversion away from custody); and
• Indigenous courts, including Circle Sentencing.^[134]

Some diversionary programs are based on ideas around reducing labelling and stigma. If a young person can be diverted from formal criminal justice systems they are less likely to be labelled as an ‘offender’ and in turn take on this criminal identity and offend further. Diversion recognises that the criminal justice system is not best placed to address a range of welfare and health issues and tries to connect young people with more appropriate community based services and aims for the least intrusive intervention.

Restorative justice principles, as seen in victim-offender conferencing and family conferencing have been very influential in program development in Australia. Restorative justice sees crime as:

A violation of people and relationships. It creates obligations to make things right. Justice involves the victim, the offender, and the community in search of solutions that promote repair, reconciliation and reassurance.^[135]

This holistic, community wide approach has led many to assume that restorative justice diversionary practices will be well suited to Indigenous communities.

It is also worth noting that the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) state:

Consideration should be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial by the competent authority.^[136]

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Impact of diversion

Diversionary practices, in particular warnings, cautions and conferencing, have been partially responsible for a sharp decrease in the number of young people in custody since the 1980s. The rate of juvenile detention has declined from a total of 1 352 young people in custody in 1981 to 605 2005 (a 55% decline).^[137] The rate for Indigenous young people has also decreased since 1994 with a 25% reduction.^[138] However, the rate of over representation of Indigenous young people has been relatively stable. We will consider the disappointing state of diversion with Indigenous young people later.

Despite the generally positive regard for diversion in the literature there is some concern about its ‘net widening’ potential. Net widening occurs when the actual diversionary intervention leads to more young people being involved in the criminal justice system, or facing more consequences.^[139] An Australian National Council on Drugs report outlines the following scenarios:

• Diversion may be considered more burdensome than a criminal sanction and may be applied to a young person who would not have received any sanction at all.
• Some innocent young people may admit guilt in order to receive a caution rather than face court, although the requirements may be more onerous and a charge may not have proceeded in any event due to lack of evidence.
• A young person may receive a conference but fail to meet the agreed outcomes and consequently face harsher court sanctions.^[140]

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Diversion and Indigenous Young People

There is a comparatively well developed literature on how diversion works with Indigenous young people. The 2001 Social Justice Report, in the context of the Northern Territory mandatory sentencing regime and Western Australian ‘three strikes’ sentencing laws, developed a set of best practice principles for juvenile diversion. These are reproduced at Text Box 5.

It is widely acknowledged that Indigenous young people do not access diversionary options at the same rate as non Indigenous young people and are under represented in cautions and conferencing.^[142] For instance, in a Western Australian study, Indigenous young people made up only 24% of the Police referrals to a juvenile justice team for a conference, whilst they made up 35% of the young people appearing before Court and 36% of young people arrested.^[143] In NSW, Indigenous young people were also more likely to appear before court, with 64% of Indigenous young people appearing before court as opposed to 48% of non-Indigenous young people. Furthermore, Indigenous young people were half as likely to be cautioned as non Indigenous young people.^[144] The ultimate failure for diversion of Indigenous young people is the over representation in custody, with Indigenous young people making up over 50% of all young people in custody.

Also concerning is the danger of net widening for Indigenous young people. For instance, since the introduction of cautioning in Western Australia, arrest rates have remained relatively stable although the level of contact with the police increased by 30%.^[145] This led the Social Justice Commissioner to state:

This means that cautioning has occurred on top of, rather than instead of, arresting young Aboriginal people. While some Aboriginal youths are clearly being given another chance by police, it is of concern that many Aboriginal youths are still being arrested, but in addition, the cautioning system seems to be netting them and some other, younger, less delinquent young people on other occasions for trivial offences that may have been ignored. ^[146]

Explanations for under representation in diversion consider institutional and process issues. One commonly cited reason is the requirement of an admission of guilt. The Australian National Council on Drugs report found that many Indigenous young people were advised by the Aboriginal Legal Services not to admit guilt.^[147] This was coupled with a mistrust of police, effectively blocking their pathway to diversionary options.

The central role of police as gatekeepers of the diversionary system (at least in regard to cautions and conferences in many jurisdictions) has been critiqued by Cunneen^[148] and Blagg.^[149] Research has shown that police are less likely to use their discretion to divert Indigenous young people, resulting in a criminal record at an earlier age. Cunneen concludes:

The manner in which these programs have been introduced has ignored Aboriginal rights to self-determination and has grossly simplified Indigenous mechanisms for resolving conflicts. In most jurisdictions, community conferencing has reinforced the role of state police and done little to ensure greater control over police discretionary decision-making.^[150]

As with the analysis of possible challenges of early intervention strategies, these comments are not meant to dismiss the very positive contribution of diversionary practices, but ensure that thorough consideration is given to the needs of Indigenous communities. In fact, where Indigenous communities have been actively involved in the process, there has been great success. While not yet targeting young people, the NSW Circle Sentencing scheme has been very favourably evaluated.^[151] Similarly, Indigenous courts have also provided good alternatives to mainstream criminal justice institutions.

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Diversion and Indigenous young people with cognitive disabilities and mental health problems

In addition to needs identified for all Indigenous young people, those with cognitive disabilities and mental health problems may require further assistance to ensure access and equity. For instance, young people with cognitive disabilities may find a conference quite difficult if appropriate modifications are not made.

Similarly, young people with cognitive disabilities or mental health problems may be ineligible for drug court programs if they are not assessed as capable of coping with treatment options such as group therapy and individual cognitive behavioural or motivational counselling. Ultimately, finding young people with cognitive disabilities or mental health problems not suitable for diversionary programs may ‘be masking the need for the program to be more flexible and offer people with cognitive disabilities a greater level of support’.^[152]

Diversion is often linked to meeting the welfare needs that lead to offending. For Indigenous young people with cognitive disabilities or mental health problems, these needs are significant. Multi disciplinary, joint case management can be a very effective way of coordinating multiple services and preventing the siloing of services. This option was raised in stage one of this research project with the Orana Joint Case Management Pilot led by the NSW Department of Juvenile Justice in 2005.^[153]

The literature does mention some specific diversionary initiatives for people with cognitive disabilities or mental health problems. None of these are Indigenous specific and few extend eligibility to young people but nonetheless are promising developments. A summary of some of these initiatives, both Australian and international is provided in Table 3 below.

Table 3: Examples of Diversionary Options Specifically for people with cognitive disabilities and mental health problems

Another interesting area of intervention is support services which work with intellectually disabled offenders. For instance, in NSW the Criminal Justice Support Network, part of the Intellectual Disability Rights Service, provides a 24 hour support service, allocating a worker to assist people through the police system. As well as assisting the young person through the process, these programs acknowledge that ‘police generally receive little training about intellectual disability, and often experience difficulty interviewing a person with an intellectual disability’.^[154] Implicitly, the more comfortable and skilled police feel, the more likely they are to use their discretion wisely. Although this is somewhat outside of conventional definitions of diversionary options, it can still have a crucial role in reducing the number of young people with cognitive disabilities that are inappropriately dealt with by police.

This support role can also extend to support through out the conferencing process. An evaluation of the NSW Criminal Justice Support Network illustrates how this can work with Indigenous young people with cognitive disabilities.^[155] One case study focusing on an Indigenous young woman with an intellectual disability (Text Box 6 below) shows the positive impact that these services can have.

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e) Summary of key findings and issues from the literature

There is a no comprehensive body of research around Indigenous young people with cognitive disabilities/ mental health problems in the criminal justice system. However, by piecing together the fragmentary evidence a picture emerges about a group that is severely disadvantaged and lacking in appropriate service delivery.

The key findings are:

• We don’t know exactly how many Indigenous young people either at risk or involved with the criminal justice system have a cognitive disability or mental health issue. However, the best evidence so far suggests that they are 4 to 5 times more likely to have a cognitive disability than the general population.
• Indigenous conceptions of cognitive disability and mental illness are different from Western definitions and depend more on relationships with others and cultural explanations.
• Disability issues are always secondary to cultural identity. This means that many Indigenous people are very uncomfortable with mainstream disability and mental health services and substantial changes must be made to ensure accessibility.
• The high incidence of mental illness and cognitive disability in Indigenous young people relates to the social determinants of health, including social, economic and cultural factors.
• The education system is failing all Indigenous young people. This is especially the case for Indigenous young people with cognitive disabilities or mental health problems. There are also young people being incorrectly diagnosed and placed in special education when in fact, they do not have a cognitive disability.
• There are a range of explanations for the over representation of young people with cognitive disabilities and mental health problems in the criminal justice system. These relate to school failure, susceptibility of involvement with the criminal justice system, differential treatment in the criminal justice system (including a lack of services), that these young people are simply more likely to get caught and that they face significant socio-demographic disadvantage.
• Substance use is an intervening factor in the offending of many Indigenous young people with cognitive disabilities or mental health problems but can also be the cause of the actual disability or mental illness as well.
• There are no specific early intervention or diversion programs that target Indigenous young people with cognitive disabilities and/ or mental health problems but there are promising crime prevention initiatives which are flexible enough to deal with the complexity of needs presented by these young people.

Gaps in literature

The extent of our knowledge around this group is largely based on research regarding adult populations. The characteristics of young people involved with juvenile justice, the dynamics of their offending, and the criminal justice institutions that deal with them, are different from the adult offending populations. It is likely that the experience of young people with cognitive disabilities and mental health problems will also be subtly different.

Furthermore, most of the research considers Indigenous issues or cognitive disability/ mental health issues, rather than the interplay between these factors. This is a very significant gap as it limits the development of culturally appropriate, effective interventions for this group.

Relatively little is known about ‘what works’ to prevent Indigenous young people with cognitive disabilities or mental health issues from becoming involved with the criminal justice system. Evaluations of the impact of interventions on the Indigenous young people are few and far between. But the evaluations that look specifically at Indigenous young people with cognitive disabilities or mental health problems; are non existent.

A review of the literature raises more questions than answers. Crucially:

• What early intervention/ diversionary options work best with young people with cognitive disabilities/ mental health problems?
• Are existing general early intervention/ diversionary options effective for Indigenous young people with cognitive disabilities/ mental health problems?
• How can general early intervention/ diversionary options be made more accessible and effective for young people with cognitive disabilities/ mental health problems?
• What are the most appropriate early intervention/ diversionary models for this group?

The following section will attempt to answer these questions.

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Endnotes

^[9] Goldson, B. and Muncie, J., ‘Rethinking Youth Justice: Comparative Analysis, International Human Rights and Research Evidence’ (2006) 6 (20) Youth Justice, pp91-106.

^[10] United Nations Committee on the Rights of the Child, General Comment No.10 (2007) Children’s Rights in Juvenile Justice, United Nations, Geneva, UN Doc CDC/C/GC/10, p2.

^[11] United Nations Committee on the Rights of the Child, General Comment No.10 (2007) Children’s Rights in Juvenile Justice, United Nations, Geneva, UN Doc CDC/C/GC/10, p2.

^[12] United Nations Committee on the Rights of the Child, General Comment No.10 (2007) Children’s Rights in Juvenile Justice, United Nations, Geneva, UN Doc CDCCGC/10, p3

^[13] United Nations Committee on the Rights of the Child, General Comment No.10 (2007) Children’s Rights in Juvenile Justice, United Nations, Geneva, UN Doc CDCCGC/ 10, p3.

^[14] United Nations Committee on the Rights of the Child, General Comment No.10 (2007) Children’s Rights in Juvenile Justice, United Nations, Geneva, UN Doc CDC/ C/ GC/ 10, p3.

^[15] United Nations Committee on the Rights of the Child, General Comment No.10 (2007) Children’s Rights in Juvenile Justice, United Nations, Geneva, UN Doc CDC/ C/ GC/ 10, p2.

^[16] United Nations Committee on the Rights of the Child, General Comment No.10 (2007) Children’s Rights in Juvenile Justice, United Nations, Geneva, UN Doc CDC/ C/ GC/ 10, p2.

^[17] United Nations Committee on the Rights of the Child, General Comment No.10 (2007) Children’s Rights in Juvenile Justice, United Nations, Geneva, UN Doc CDC/ C/ GC/ 10, p2.

^[18] NSW Department of Juvenile Justice, NSW Young People in Custody Health Survey Key Findings Report, Haymarket, 2003.

^[19] Kenny, D, T., Nelson, P., Bulter, T., Lennings, C., Allerton, M., and Champion, U., NSW Young People of Community Based Orders Health Survey 2003-2006: Key Findings Report, University of Sydney, 2006.

^[20] NSW Department of Juvenile Justice, NSW Young People in Custody Health Survey Key Findings Report, Haymarket, 2003, p19.

^[21] Kenny, D, T., Nelson, P., Bulter, T., Lennings, C., Allerton, M., and Champion, U., NSW Young People of Community Based Orders Health Survey 2003-2006: Key Findings Report, University of Sydney, 2006 p24.

^[22] NSW Law Reform Commission, People with Intellectual Disability and the Criminal Justice System: Courts and Sentencing Issues, 1994, Discussion Paper 35, section 2.5.

^[23] Kenny, D, T., Nelson, P., Bulter, T., Lennings, C., Allerton, M., and Champion, U., NSW Young People of Community Based Orders Health Survey 2003-2006: Key Findings Report, University of Sydney, 2006, p24.

^[24] NSW Department of Juvenile Justice, NSW Young People in Custody Health Survey Key Findings Report, Haymarket, 2003, p19.

^[25] NSW Department of Juvenile Justice, NSW Young People in Custody Health Survey Key Findings Report, Haymarket, 2003, p27.

^[26] Kenny, D, T., Nelson, P., Bulter, T., Lennings, C., Allerton, M., and Champion, U., NSW Young People of Community Based Orders Health Survey 2003-2006: Key Findings Report, University of Sydney, 2006, p25.

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^[28] The ‘Key Findings Reports’ only represent a summary of both health survey findings. Further analysis is being conducted by the Young People on Community Orders Health Survey Team to provide a break down of data on Indigenous status and is forthcoming.

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^[32] Mental disorder was defined as a psychosis, affective disorder or anxiety disorder

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^[44] New South Wales Aboriginal Education Consultative Group, Freeing the Spirit: Dreaming an equal future (Yanigurra Muya: Ganggurrinyma Yaarri Guurulaw.gurray) NSW Department of Education, Darlinghurst, 2004, p130.

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^[47] Disability Services Commission, Aboriginal People with Disabilities: Getting Services Right, Government of Western Australia, 2006, p7.

^[48] Disability Services Commission, Aboriginal People with Disabilities: Getting Services Right, Government of Western Australia, 2006, p7.

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