Inquiry into Indigenous youth in the criminal justice system
In June 2011, the House of Representatives Standing Committee on
Aboriginal and Torres Strait Islander Affairs (Aboriginal and Torres Strait
Islander Affairs Committee) tabled its report on the high level of involvement
of Indigenous juveniles and young adults in the criminal justice system. The
Aboriginal and Torres Strait Islander Affairs Committee commented:
It is clear from the evidence received that FASD is an issue
poorly understood by governments. The significance and rate of FASD in youth across
Australia is not known.
It would appear that a significant number of Indigenous
people who end up in detention centres and prisons are there partly as a result
of the failure of governments to identify FASD as an issue underpinning their offending
behaviour. As a result, punitive rather than remedial responses have prevailed.
The Aboriginal and Torres Strait Islander Affairs Committee highlighted
the importance of access to accurate and timely assessment and diagnosis of
FASD for children, their families and professionals working in the health and
criminal justice systems:
Early diagnosis would also mitigate the secondary damages
associated with FASD. Diagnosis and support for Indigenous youth with FASD
already in contact with the criminal justice system is also important.
The Aboriginal and Torres Strait Islander Affairs Committee recommended
that the Commonwealth Government urgently address the high incidence of FASD in
Indigenous Communities by:
developing and implementing
Foetal Alcohol Spectrum Disorder diagnostic tools and therapies, with a focus
on working in partnership with Indigenous health organisations in remote and
regional Australia where there is a recognised prevalence of the disorders, and
recognising Foetal Alcohol
Spectrum Disorder as a registered disability and as a condition eligible for
support services in the health and education systems.
The Aboriginal and Torres Strait Islander Affairs Committee also
recommended a comprehensive inquiry into FASD prevalence, diagnosis,
intervention and prevention by the House of Representatives Standing Committee
on Social Policy and Legal Affairs.
The Government response to the Aboriginal and Torres Strait Islander
Affairs Committee accepted this recommendation in part.
The Government response noted $3.2 million investment in the area since 2010,
including $1.7 million for the initiation of the Lililwan Project. New
investment on FASD included:
the development and dissemination of brochures and posters
highlighting the 2009 Australian Alcohol Guidelines (National Health and
Medical Research Council) message that for women who are pregnant or
breastfeeding, not drinking is the safest option;
the development of screening tools for alcohol use during
the development of a FASD diagnostic instrument to assist
an Australian Institute of Health and Welfare scoping study on
ways to improve FASD related data collection and reporting.
In addition, the Government response indicates that the House of
Representatives Standing Committee on Social Policy and Legal Affairs will be
pursing an inquiry into FASD.
However, the Government response states:
The Government does not currently propose to recognise FASD
as a registered disability. Access to specialist disability services is
currently based on functional needs rather than diagnosis. However, many
sufferers of FASD would meet the criteria for eligibility for support services
on the basis of functional needs. Support for people with FASD, and their
carers, is available through a range of specialist disability services, which
are provided by State and Territory Governments under the National Disability
Inquiry into prevention, diagnosis and management of FASD
Following the Aboriginal and Torres Strait Islander Affairs Committee's
recommendation, the House of Representatives Standing Committee on Social
Policy and Legal Affairs (Social Policy and Legal Affairs Committee) inquired
into the prevention, diagnosis and management FASD and tabled its report in
In relation to FASD and the criminal justice system, Social Policy and
Legal Affairs Committee noted that individuals with FASD may not have their
disabilities taken into account by judicial officers. Further:
Due to the broad spectrum of FASD, some people with FASD may
fit within current definitions of disability for the purpose of sentencing that
takes into account reduced culpability. Others, however, may not, despite
having significant impairments that should be considered mitigating factors.
The Social Policy and Legal Affairs Committee referred to the
'disproportionately frequent interactions' of people with FASD with the
criminal justice system, and that 'the system is not designed for people with
the type of impairments associated with FASD'.
The Social Policy and Legal Affairs Committee expressed concern that:
[T]he reduced culpability of individuals with FASD may not be
taken into account in judicial courts, resulting in such people being
imprisoned instead of treated.
The Committee received compelling evidence that legislating a
clear and inclusive definition of disability would remove the confusion around
the eligibility of individuals with FASD for support services and ensure equity
before the law for defendants with FASD.
The Social Policy and Legal Affairs Committee made 19 broad ranging
recommendations. Those recommendations went to: awareness raising and
prevention; diagnosis; and management needs. Specifically in relation to the
criminal justice system:
The Committee recommends that the Commonwealth Government
recognise that people with Fetal Alcohol Spectrum Disorders have, amongst other
disabilities, a cognitive impairment and therefore amend the eligibility
criteria to enable access to support services and diversionary laws.
Other recommendations of the Social Policy and Legal Affairs Committee
that the actions set out in the Social Policy and Legal Affairs
Committee's report constitute the Commonwealth Government's National Plan of
Action for the prevention, diagnosis and management of FASD (Recommendation 1);
the establishment of an ongoing FASD Reference Group to oversee
and advise on the FASD National Action Plan. The Reference Group would consist
of a select group of practitioners, professionals and stakeholders who are
experts in the prevention and management of FASD and report to the relevant
Commonwealth Government Ministers (Recommendation 2); and
the Commonwealth Government report publicly:
- within 12 months on the progress of the implementation of a
national FASD diagnostic and management services strategy; and
- within five years on the progress towards eliminating FASD in
Australia (Recommendation 3).
In July 2014, the Government response to the Social Policy and Legal
Affairs Committee's report was tabled. The Assistant Minister for Health,
Senator the Hon Fiona Nash, in responding to the report provided the following
summary of the Government's position on FASD:
The Government remains very aware of the adverse health
impacts FASD has in the Australian community and as such, I was pleased to
announce on 25 June 2014 funding of $9.2 million for the National FASD Action
This Plan provides $3.1 million for grants to drug and
alcohol services to support alcohol dependant women. It provides $1.5 million
in targeted grants to undertake further research to develop best practice guidelines.
The New Directions: Mothers and Babies programme will receive $4 million. The
contract to finalise and disseminate the FASD Diagnostic Tool is now in place
and the tool will become available in 2015. The establishment of the FASD
Technical Network is nearing completion and I am pleased the Professor
Elizabeth Elliott AM has agreed to Chair the Network.
Inquiry into the value of a justice reinvestment approach
The Senate Legal and Constitutional Affairs References Committee
considered FASD as an issue contributing to the high incarceration rate of
Indigenous Australians in the course of its inquiry into the value of a justice
reinvestment approach to criminal justice in Australia.
The recommendations of the Legal and Constitutional Affairs Committee went
specifically to justice reinvestment initiatives.
Inquiry into the harmful use of alcohol in Aboriginal and Torres Strait
In June 2015, the House of Representatives Standing Committee on
Indigenous Affairs (Indigenous Affairs Committee) tabled the report from its
inquiry into the harmful use of alcohol in Aboriginal and Torres Strait
Islander communities, Alcohol, hurting people and harming communities.
The Indigenous Affairs Committee acknowledged the launch of the FASD
Action Plan in 2014 as 'a good first step', however:
[T]he committee is concerned that the Action Plan does not
address all the key recommendations of the 2012 report FASD: The Hidden Harm
- Inquiry into the prevention, diagnosis and management of Fetal Alcohol Spectrum
Disorders by the House Standing Committee on Social Policy and Legal
Affairs, in particular the need for prevention strategies that will provide
information and education programs and support for pregnant women with drinking
While there had been some progress with the Australian diagnostic tool
for FASD, the Indigenous Affairs Committee noted its concern:
[T]hat the rollout and evaluation has been subject to ongoing
delays which has meant that [the diagnostic tool] is still not available for
health professionals to use.
In relation to FASD and the criminal justice system, the Indigenous
Affairs Committee observed:
There was evidence that when the education and criminal
justice systems cannot take FASD into account because there is no official
diagnosis of a recognised disability, the individual is severely disadvantaged.
The requirements for FASD to be considered in the courts are quite stringent
and without a diagnosis, FASD cannot be seen to be a mitigating factor in the
The Indigenous Affairs Committee made six recommendations in relation to
FASD and Foetal Alcohol Syndrome (FAS), including:
that the Commonwealth, as a matter of urgency, increase its
efforts to ensure that consistent messages:
- about the risks of consuming any alcohol during pregnancy, and
- about the importance of supporting women to abstain from alcohol
when planning pregnancy, when pregnant or breastfeeding
to reduce the risk of FAS and FASD are
provided to the whole community (Recommendation 16).
That the Commonwealth, as a priority, ensure that the National
FASD Diagnostic Tool and accompanying resource are released without any further
delays (Recommendation 17).
That the Commonwealth, in consultation with the FASD Technical Network,
and relevant organisations from the criminal justice system:
- develop a model definition for cognitive impairment, and
- conduct a review of Commonwealth law and policy to identify where
eligibility criteria need to change to ensure that people with FAS and FASD and
other cognitive impairments can be included (Recommendation 21).
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