Australia has an embarrassingly high rate of indigenous people dying in custody. There have been more than 340 deaths since the 1991 Royal Commission Report. This number indicates a lack of progress and is in many ways unacceptable. There is a climate of suspicion that the criminal justice system is against Indigenous Australians, which makes a national reconciliation effort between Indigenous and non-Indigenous people difficult. According to a 2015 report by law firm Clayton Utz, the majority of the Royal Commission’s recommendations remain unimplemented or have only be partially adopted. In some cases, there have been laws implemented that directly contradict the recommendation that prison should be the last option for Indigenous people. For instance, the paperless arrest laws in the Northern Territory give the police the authority to detain people for minor offenses without charge. In Western Australian some laws have been strengthened regarding mandatory sentencing and prison terms for fine defaulters.
There is deep embedded institutional racism, discrimination and a stigma that has a significantly destructive and marginalizing effect on Indigenous people with mental and cognitive disabilities. According to a survey by Indigenous Australians with Mental Health Disorders and Cognitive Disability (IAMHDCD), the stigma and discrimination that is experienced because of their Aboriginality directly affects their access to employment, education, housing and justice. Their report suggests that there is a kind of double stigma, where people got the label as having an intellectual disability, as well as being a ‘forensic criminal’ and ‘dangerous.’ This then changes the perception of that person and leads to an overestimation of the risk. It also affects on the range of therapeutic options for that person, so there is a different focus on why that individual may have been involved in criminal behaviour.
There is only a small recognition of the ongoing impact of colonization, intergenerational trauma, and grief and loss for Indigenous people. It has been said that the over representation of Indigenous people with mental and cognitive disabilities in the criminal justice system has been normalized in every community that has been investigated. All agency practices seem to support the view that Indigenous people with disabilities should be managed by criminal justice agencies. Data from a recent report shows that there is a systemic normalization of disadvantage, disability and offending, which is seen most clearly in individuals with complex support needs.
Sometimes, Indigenous people are the first time diagnosed with mental disorders when they enter prison. However, in most cases this diagnosis does not lead to appropriate support while they detained. Some analysis suggest that subsequent intervention is based on offending behaviour rather disability, complex social disadvantage and mental health support needed. The critics of the negative impacts of current legislation, policies and practices on Indigenous people with mental health issues is growing. There is a need for evidence-based responses by policymakers and political leaders and all employees within the criminal justice system such as correctional officers, parole officers and police officers. It is indeed poor policy practice to use laws and criminal justice services to manage Indigenous Australians with complex support needs.
The IAMHDCD project further elaborates on the recommendation for five main principles and strategies that underpin policy review and implementation. The first principle is self-determination, which is crucial to the exercise of and improving access to human rights and to the well being of Indigenous people with mental and cognitive disability, particularly those in the criminal justice system. These strategies include Indigenous-led solutions, knowledge and community based services being appropriately fostered and resourced. Those people that live in remote areas should also receive extra attention in policy response to this issue. In addition, there should be enough resources provided to foster the cultural competency of non-Indigenous agencies and organizations that engage with Indigenous people with mental health issues who are in the criminal justice system.
The second principle is about person-centred care which is culturally and circumstantially appropriate. It is about the individual becoming the main focus of their own care. They should be able to make their decisions about their needs for their recovery. This strategy includes the disability service and the National Disability Insurance Scheme (‘NDIS’) providing holistic support needs strategy for Indigenous people with disabilities in the criminal justice system. There could be specialized accommodation options provided in the community rather than in custodial settings to improve well being. Indigenous people with mental and cognitive disorders that are classified at risk of harming themselves or others should not return to community without specialist support.
The third principle supports a holistic and flexible approach to supporting Indigenous people with mental and cognitive disabilities and complex support needs. These strategies include community health services and police providing positive and preventive support, which fosters Indigenous children with disabilities to develop and flourish. There could also be some different ‘step-down’ accommodation options for Indigenous people with cognitive impairments such as in the NSW Community Justice Program. The community-based sentencing options should be appropriately resourced and integrated to meet the needs of Indigenous people with mental and cognitive disabilities.
The fourth principle is about the integration of services, which are then better equipped to provide effective information sharing, referral and case management support to Aboriginal and Torres Strait Islander people. These strategies include justice, correctional and human services as well as non-government organizations taking a collaborative approach in creating program pathways for people with complex needs who require support from several human and justice sectors. All detained people with mental health issues should be referred to the public advocate of that jurisdiction.
The fifth and last principle is about culture, disability and gender informed practice, with a particular focus on issues regarding Aboriginal and Torres Strait Islander women. Strategies could include the improved education and information that is provided to teachers, police officers, education support workers, magistrates, lawyers, correction service providers, disability and community services providers regarding learning about Aboriginals and Torres Strait Islanders with mental health disorders and complex support needs. The information that is provided should be culturally informed and come in an accessible way.
It can be said that the pathways of Indigenous people with mental and cognitive disabilities from disadvantaged backgrounds into prison are predictable, preventable and heart-breaking. There is a need to reduce the unacceptably high number of Indigenous people with mental and cognitive disabilities in the Australian criminal justice system. Those people should be able to live with dignity in their own communities.
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