First Nations people with disability and the criminal justice system – Part 1

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Marisa Sposaro (Doin’ Time, 3CR) interviews Professor Eileen Baldry (Criminologist, UNSW Sydney) on First Nations people with disability and the criminal justice system.

Listen to the full interview here:

Transcript:

Marisa: Today on the show, we are going to be beginning with a two-part series talking about the Royal Commission and disability, and First Nations people in the criminal justice system. Eileen Baldry will be up first, and I’ll just give listeners a little bit of an idea of her bio. She is a Deputy Vice Chancellor, Equity, Diversity, and Inclusion, and Professor of Criminology at the University of New South Wales, Sydney. Professor Baldry has held senior positions in the Faculty of Arts and Social Sciences, serving as Interim Dean, Associate Dean Education, and Deputy Dean, and is appointed the first female Deputy Vice Chancellor at the University of New South Wales. Professor Baldry has taught social policy, social development, and criminology over the past 30 years. Her research and publications focus on social justice, and include mental health and cognitive disability in the criminal justice system, criminalised women and Indigenous Australian women, and youth education, training, and employment for prisoners and ex-prisoners, homelessness and transition from prison, Indigenous justice, Indigenous social work, community development, and social housing, and disability services.

Professor Baldry has been and is a chief investigator on numerous Australian research council, and other grants over the past 25 years, contributes to commissions and inquiries, and has published over 130 peer reviewed books, articles, and reports. She has been involved in a voluntary capacity with a number of development and justice community organisations, and is currently a director on the board of the Public Interest Advocacy Centre. And she served as chair of a number of homelessness and justice related committees. And there’s so much more, I think it would take up a whole show. She’s done a lot of amazing stuff, and we’ll be speaking with her shortly about the criminal justice system, which is an important area of inquiry for the Royal Commission into violence, abuse, neglect, and exploitation of people with disability.

The Royal Commission. People with disability may come into contact with the criminal justice system as a victim of crime, a person accused or suspected of a crime, or as a witness to a crime. People with disability including young people are overrepresented across the criminal justice systems in Australia, and are at a heightened risk of violence, abuse, neglect, and exploitation in criminal justice settings. We will be looking at people with cognitive and/or psychosocial disability who are significantly overrepresented amongst the group who are charged with or accused of criminal offences.

We’ll also look at First Nations people, and have a look at First Nations people with disability facing particular disadvantages in the criminal justice system. And next week we will then speak with Peta, and Eileen and I will announce that at the end of the show, and talk a little bit about her and what we’ll be doing next week. I’d like to welcome professor Eileen Baldry to the… Well, not to the studio, it’s remotely, but welcome Eileen to the show.

Professor Baldry: Aw, look, thanks so much, Marisa.

Marisa: It’s lovely to have you. Now, Eileen, I’ve done enough talking, and I’m just going to hand it over to you now. And I’m wondering if you would be able to talk to us just a little bit about what’s happening with First Nations people and people with disability in the criminal justice system, and I believe there was a submission that you were involved with.

Professor Baldry: Yeah. So look, first I’ll give a bit of a background to this, but for a long time, we’ve known that First Nations people are increasingly overrepresented in all aspects of the criminal justice system. So it’s also really important to think about all of those factors in the criminal justice system, or the aspects of the system. There’s the police, there’s the courts, there’s prisons, there’s community detention, or community ways of holding people, there’s parole, there’s a whole range of aspects that come into play here, as well as what’s called, “the forensic system.” And forensic system is that part of both criminal justice and mental health, or psychiatric work, which picks up that someone has committed an offense, but this has been largely driven by their psychosocial, the issues that they may be experiencing. And they may be held indefinitely in detention, and I know we’re going to talk about that.

And so when we’re thinking about the criminal justice system, we’re thinking about a lot of systems, and we’re also talking about eight different jurisdictions. Every state in Australia has its own criminal justice system with all of those factors, and they all behave a little bit differently, and all have quite different profiles, particularly for First Nations Australians. And so all of those things become really important for people with disability. When we know that in general, whether you’re Aboriginal or not Aboriginal, or First Nations or not First Nations person, people with disability are significantly overrepresented in the criminal justice system. And that is particularly the case of people with psychosocial, or mental health concerns, or issues, as well as for people with cognitive or neurodiverse issues.

And it’s also the case actually, as I think many of your listeners will know, that in First Nations people are more likely to have particular forms of disability, aspects of disability. Hearing impairment is more common amongst some First Nations people. And so these are all really important to consider when somebody is facing the police, for example. So do the police recognise or know that the person that they might be thinking about arresting, or picking up, or cautioning, do they know that that person has a disability? And in many instances they don’t, and that often is the gateway for people to enter the first phase of the criminal justice system.

And I think the other thing that is really important in this area for people to know is that First Nations children are far more likely than non-First Nations children to enter the criminal justice system via the police on the whole, but enter the system significantly earlier than those who are not First Nations children. So it follows a whole range of things, including racism, and the way in which many Aboriginal First Nations kids are viewed by our systems, by police, by others.

And that means that First Nations people are far more likely from a younger age to be captured, caught in that web of criminal justice involvement, and to have disability, because it is more likely that those children have a disability than it is for non First Nations children. So perhaps, Marisa, that is just a painting a bit of a picture of what we have here.

Marisa: Sure. Look, I’m really happy that you’ve given that background because at the end of the day, really what we’re looking at here is that we’re looking at colonisation. The fact that colonisation has had a profound effect, hasn’t it? And transgenerational trauma in regards First Nations people, and then compounded with that you’ve got the disability, and sometimes isn’t it true that people who have disabilities end up being in prison even though they haven’t committed any crime?

Professor Baldry: Yeah. So the issue there is, you’re absolutely right, so the first thing to say is that colonisation continues for, and I know your listeners know this and you know this, but colonisation continues for First Nations people in Australia. And this area of criminal justice is one of the key areas where it is actually getting far worse, and where the way in which colonisation act out for First Nations people makes it so, so difficult for First Nations people to move outside of that. So that is so important, and we need to decolonise. Absolutely.

But then coming to the issue around whether people, whether they’re First Nations or not, persons with disability may well be imprisoned or caught up in the criminal justice system, even if they have not offended, is it’s a really important question, because here is where concerns about someone’s behaviour, for example, may be interpreted as, “This person is offending.” Even though the behaviour is caused by the disability, or is a part of their disability. And we can talk about that in a minute, if you wish.

Marisa: Sure.

Professor Baldry: But the police and the courts may not view it that way. And so it may be that someone has behaved in a particular way, which in other circumstances may be seen as offending, but in this case should not be seen as offending. I think there’s another couple of things that are really important to understand here. And these are that we have a system that we have inherited from Britain, but we have a kind of Anglo system which assumes in a way that people with cognitive issues, people with mental health issues, people who have a range of disabilities, that in fact they are more likely to offend. And there was in fact a way in which it was that that was almost the definition of somebody offending, that, “Well, yes, of course. They’ve got a disability, and that means they’re more likely to offend.” So that kind of underlying-

Marisa: It’s an assumption.

Professor Baldry: Yeah, that’s right. It’s an underlying, almost assumption.

Marisa: And also coupled with racial profiling as well.

Professor Baldry: Exactly. And you add First Nations or an indigenous status to that, and there you are, it becomes almost self-fulfilling. And then maybe the third thing to say about this is that middle-class or wealthier people with disability on the whole do not end up in prison, do not end up even if the police pick them up. They have a community, or they have the funds, or they have a family who knows how to work the system. And there isn’t the assumption that, “Well, they’re offending, they’re doing a criminal act.” Rather than, “Oh, there’s something going on for this person, and we should try to steer them away from prison.”

And so this is also then so clearly linked up with disadvantage, and poorer communities, or communities with poor job prospects, and First Nations Australian people are more likely to be in communities, even though those communities might be very strong in terms of their care, and love, and support for their community members, they are more likely to be in remote, or rural, or communities in the city that have poorer access to good services, to education, to employment, and to the kinds of supports that people with disability need. So all of these things come together to make it more likely that a First Nations person with disability almost is more likely to end up being caught up in the criminal justice system.

Marisa: Eileen-

Professor Baldry: And then-

Marisa: Sorry.

Professor Baldry: Keep going.

Marisa: I’m wondering if… Sorry to interrupt there, but I’m just conscious that we’re going to run out of time fairly soon.

Professor Baldry: No, not at all. Fine, of course. Yeah.

Marisa: And I’d like to have you back at some stage, and it’s really great that you’ve been able to highlight all that. Before we actually go into more specifics about that, I’m wondering, could you just set the scene in regards to this research that you have conducted in regards to other contributors as well? And I understand that there are Aboriginal and non-Aboriginal contributors in this report. Could you just name the report where this research is contained, and talk about where we can get that? Or is it a submission?

Professor Baldry: So are you talking about the indefinite detention of persons with disability?

Marisa: Yes.

Professor Baldry: Yeah. Look, there are a number of aspects to that. One is that in 2016, there was a report from the government on indefinite detention of people with cognitive and psychiatric impairment in Australia. So that was a first pass, if you like, at this important area. And then there have been a number of further reports in regard to Indigenous Australians or First Nations people and indefinite detention.

Marisa: Right.

Professor Baldry: Yeah. So people like First Nations Disability Network, which is a national body which works on these matters, is very closely involved in it, but there’s a range of people around Australia who have fought around this issue. But then on top of that, there have been a number of submissions to the Senate Standing Committee on the NDIS where a number of us, including Patrick Kaiser, Patrick McGee, myself, First Nations people, have been putting in their submissions saying, “It is even worse for the First Nations people, Aboriginal and Torres Straight Islanders in regard to indefinite detention for those with cognitive and psychiatric impairment in Australia.”

Professor Baldry: And arguing for the absolute importance of getting rid of indefinite detention across Australia. And I might add to that, although it’s not in that report, I might add to that there is another really, really important area that I feel very strongly about, and that many of my colleagues feel very strongly about, including Peta MacGillivray, who you’ll be interviewing next week, and that is to raise the age of criminal responsibility. At the moment in Australia, the age of criminal responsibility is 10. That is so poorly viewed across the world. It is also completely out of step with the United Nations and with the Rights of the Child.

Because what this means is particularly for kids and Aboriginal kids, because Aboriginal kids are the most over represented in juvenile justice, massively so, more so than in the adult system. And a lot of that has to do with this very low age of criminal responsibility that Australia has. So there’s a number of really important things that quite a number of us have been trying to add in to this. And all of this is also going into the Royal Commission. So we’re making these submissions to the Senate, to government, but very particularly to the Royal Commission, because the Royal Commission, we all know, has already begun to make some very important, or give some important, reports, and to make some very important recommendations already around areas that are not necessarily criminal justice, but that are pertinent to criminal justice.

Marisa: And is there a website that listeners can access to read these reports, and indeed read up about the Royal Commission?

Professor Baldry: Yeah. Right. So anybody who wants to look at the reports that have come out of the Senate or the Parliament of Australia, the other house, you just go into Parliament of Australia, that’s APH, Australian Parliament, and it’s www.aph.gov.au. And you can search for, you can put in “indefinite detention,” for example, you can put in “NDIS.”

Marisa: Different areas.

Professor Baldry: So you can go searching. Yeah, that’s right, as long as you get into the Parliament of Australia. And then as far as the Royal Commission is concerned, the Disability Royal Commission has its own site, disability.royalcommission.gov.au.

Marisa: Thank you so much, Professor Eileen.

Professor Baldry: Yeah, you just go into that. Yeah.

Marisa: So I’ve got a couple of minutes left, and I wanted to thank you so much for coming onto the program. And I know you and I were speaking off air about interviewing both Aboriginal and non-Aboriginal contributors, and you’ve done some excellent research, but I’m wondering, could you just give a little bit of a blurb about Peta, who I’ll be interviewing this week? She’s Aboriginal herself, isn’t she?

Professor Baldry: Yeah, she is. I love, love to talk a little about Peta MacGillivray. So Peta MacGillivray has been a member of the research that we’ve been doing around Indigenous Australians with mental and cognitive disability, and once we finished that a couple of years ago, has continued to work with our research team, particularly around the children with disability who have ended up in the criminal justice, Aboriginal children. And Peta is a lawyer, she graduated some years ago with arts law from UNSW, she’s just finishing a criminology master’s degree in which she has focused very much in the areas that we’re talking about.

And she’ll be starting a PhD next year, but the other thing about Peta is that along with another wonderful Aboriginal woman who gained her doctorate a year or two ago, who worked with us, Dr. Elizabeth McIntyre, that Peta and Elizabeth were the Aboriginal team, the two Aboriginal women who engaged directly with Aboriginal community people, people with disability, people who had experience, lived experience with the criminal justice system, their families, the people who work with them, the elders in those communities over a number of years, as we listened to and heard the stories, and narratives, and experiences.

Marisa: That’s what we need to concentrate on this week, I think.

Professor Baldry: Yeah, and Peta will be able to give you some really rich and really important information. And I really emphasise that because this knowledge is owned by those Aboriginal people. And they are the people who have experienced this, have lived this. And as a white person, have learned how important it is that Aboriginal voices are preferenced here, that Aboriginal voices are the ones who are heard, because they are the ones who know what happens to them, and their community, and their families.

Marisa: Eileen, thank you so much for coming onto the program, and this is indeed fantastic that you’ve been able to come on. And also that we’ve been able to introduce Peta, and in fact, this show is also disability led because I also am a woman with a vision impairment. And I’d like to interview you someday about Aboriginal people with vision impairments at some stage. I’m sure we could talk about that sometime another day.

Professor Baldry: Yeah. That’d be fantastic. I’d love that.

Marisa: Eileen, well, good.

Professor Baldry: Thank you so much, really, really lovely talking with you, Marisa.

Marisa: You too. And that just scratches the surface. Look, we could be here all night. Thanks so much.

Professor Baldry: Okay, fantastic. Bye.

Marisa: Take care, bye-bye.

Professor Baldry: Bye-bye.

Marisa: Bye. And that was professor Eileen Baldry, and she was speaking about First Nations and people with disability, specifically with cognitive and psychiatric impairments and the criminal justice system, and she gave a bit of an overview about the Royal Commission-



Professor Eileen Baldry is an Australian criminologist and the Deputy Vice-Chancellor of Equity, Diversity and Inclusion at UNSW Sydney. Her research and publications are focused on a wide range of social justice issues including mental health and cognitive disability in the criminal justice system and Indigenous justice.

In 2016, Professor Baldry was a contributor to a submission to a Senate Inquiry titled “Aboriginal and Torres Straight Islander Perspectives on the recurrent and indefinite detention of people with cognitive and psychiatric impairment.”


Marisa Sposaro is a Radio Broadcaster at 3CR Community Radio Melbourne. She hosts a show called “Doin’ Time” and broadcasts on the human rights and lived experience of prisoners and asylum seekers. Her primary focus is First Nations media and building the movement to stop Aboriginal deaths in custody. Marisa is vision impaired and also interviews on disability rights.