First Nations people with disability and the criminal justice system – Part 2

On the right is a chainlink fence, topped with barbed wire. The background is an out of focus bright blue sky with drifting clouds.
Photo courtesy of Markus Spiske on Unsplash.

Marisa Sposaro (Doin’ Time, 3CR) interviews Peta MacGillivray (Social Policy and Research, UNSW Sydney) on First Nations people with disability and the criminal justice system.

Listen to the full interview here:

Transcript:

Marisa: Hello, and welcome to the Doin’ Time Show. This is Marisa, and we’re going to be speaking first up with Peta. Peta is a First Nations woman, and she has done a lot of work in the area of detention and young people with disability who are also Aboriginal. And Peta MacGillivray will speak to us very soon and she will also talk to us about what land she’s from. And we’ll talk about the Royal Commission and look at some stories in regards to what happens with young people in detention and indeed, it is a bit of a mess. And we’ll talk about that very soon and also in the context of colonisation.

So, today’s show is really the second part of a two-part series talking about the Royal Commission and disability, First Nations people, and looking at all that in the context of the criminal justice system. Last week we spoke with Professor Eileen Baldry and she led the discussion in regards to these topics. And so today we’ll be continuing that discussion with Peta and just remembering, of course, reminding listeners that there will be audio representations of perhaps people that have died. Hello Peta, welcome to the program.

Peta MacGillivray: Hi, Marisa. Thanks for having me.

Marisa: It’s lovely to have you. So Peta, I’m wondering if you could introduce yourself and talk about what land you’re from and some of the work that you’ve been doing.

Peta MacGillivray: Yeah, for sure. So, I’m a Kalkutungu and South Sea Islander woman from far west, North Queensland. And I’m calling in today from Bigambul country and Sydney’s Eastern beaches. And just want to say that Bigambul elders past and present have looked after this beautiful country that I get to live and work on and sovereignty was never ceded.

Marisa: Absolutely. And you’ve also… You’re a field researcher and project manager for the Indigenous Australians with mental health disorders, or is that previous work that you were doing?

Peta MacGillivray: Yeah. So it’d be great to talk a little bit about this research. So I was the Aboriginal researcher with my colleague, Liz McIntyre I want to give her a shout out. We were the two First Nations researchers on this work, and we were involved from the very beginning in shaping the research as a piece of critical indigenous informed research. And that was really unique because there is not a lot of research which centres and privileges Aboriginal voices in this space when looking at this really serious issue of the over representation of that Mob in the criminal justice system with disability. So Liz and I, we worked closely together to work with Aboriginal community controlled organisations, to develop the research questions and actually say, how can this research be useful to communities to advocate around what communities know all too well, which is that the criminal justice system becomes the system which is forced to respond to these needs because the community space or the community sector is not getting it right.

And then police and prisons become the default systems which come to control Aboriginal people with disabilities lives instead of the services and the spaces which we know can actually make people’s lives a lot easier and increase wellbeing. So Liz and I worked closely with legal services, Aboriginal community controlled legal services and medical services to do this work really close to the ground, really close with community. And that was really important because it meant that the work that we did was culturally safe, that it was able to achieve what Aboriginal communities want out of this work. So, what research findings that are actually useful? Can we do something with this? Can we advocate for services which are culturally appropriate and effective? Can we get resourcing to make sure that resources are going to the right organisations to work with the families that we need the most amount of support? So it was very different in that way. And that was what brought me into this space initially after I finished law school.

Marisa: That’s why I felt it was important to mention it because I had a feeling that that was actually a starting point.

Peta MacGillivray: Yeah, it was. And it was a very special piece of work. And I got to meet and work with some extraordinary Aboriginal people doing this work out in, across New South Wales and in Central Australia. Our work took us into communities and talking to community health workers and nurses, doctors, and lawyers, and of course, most important in all of this is Aboriginal people with disability who had experience of the harmful criminal justice system and most of the time and an unjust system. And that’s exactly what the Royal Commission is finding now. The Royal Commission and the Disability Royal Commission into violence, abuse, and neglect and exploitation of people with disability. It’s finding that for our Mob, there is no justice and it’s really hard to get the benefit of so-called justice processes because of the lack of support that our Mob get around their disability needs.

Marisa: No justice, no peace.

Peta MacGillivray: That’s right. Yep.

Marisa: Would you say that this topic is invisible? Because I think what I find quite appalling both as a radio broadcaster and also as a human rights activist is that young First Nations people with disability. And you’ve got your disability and you’re black. I mean, that’s a type of whammy. How does that-

Peta MacGillivray: It is.

Marisa: It’s very invisible and it’s invisible to policy makers. Can we talk about that?

Peta MacGillivray: Definitely. And you’re right. It is this kind of double paternalism, isn’t it? Where you experienced the… And I say this as a person who does not have a disability. And I work in this space as a very, as an abled person, but I can say, I also used to be a specialist children’s lawyer. And I was a direct legal representative of many clients, young people with disability in the children’s court. And I would see it, I would see the experience of that kind of erasure, the erasure of them and their voice. And I had this unique position of being a direct legal representative. So I was able to take instructions from a young person and advocate hard for them in spaces where they were treated, they experienced racism.

And what we know that people with disability talk about the discrimination because of their disabilities. So it’s a system which seems to fail to see people as young people, as human, I think. And that’s certainly the case as well as people enter into the adult criminal justice system and lots of my clients heartbreakingly did graduate into the adult criminal justice system because their disability needs were not met as young people in the system. And then age into the adult system and continue to have their disability needs erased or ignored. So it’s systemic, right? This is not something about individuals not getting what they need. These are systemic failures and they start from the very earliest ages for Aboriginal young people. And I think Eileen talked about this last week on your show that we know from the evidence that Aboriginal young people come into contact with police much, much earlier than non-Aboriginal young people all across the country. And that’s even younger for Aboriginal young people with disabilities as well.

Marisa: Can you talk about perhaps an example to highlight in practice about this situation?

Peta MacGillivray: Yeah. So what we know from in New South Wales, I can talk about New South Wales it’s the jurisdiction I’m most familiar with. There is a health survey that’s done of young people in youth detention, in New South Wales. And from that survey, we know that there’re young people with disability far overrepresented in youth detention. And from my experience working in the children’s court, I could see why and it was because so many of the… We were taught as specialist children’s lawyers, that all behaviour is communication for young people and especially for young people with disability needs. And often there is not enough understanding within the environments that this group of young people find themselves. So the care and protection system often, or residential out of home care, there is not enough workers in that system who understands that concept.

And so a lot of young people’s behaviour that presents as what the system would call offending is actually at non-recognition of behaviour related to unmet disability needs. So I had a young person who was charged with malicious damage because they were frustrated and they threw something which caused damage. And so the police become the mechanism that is used to manage that behaviour. Whereas if we saw that type of thing happen in a middle class family, or in an environment that wasn’t so ready to criminalise, we wouldn’t see the police use that way. So I think this is where you start to see agents like the police, the normalisation of that type of response for a particular group of young people. And in my experience, we see that happening the most to Aboriginal young people, but it’s something that happens to non-Aboriginal young people with disability as well.

Marisa: It’s very interesting that you mentioned class because I wonder whether even if an Aboriginal person with a disability was middle-class, I wonder if that would still happen because of the fact that, that young person was Aboriginal because I’ve seen that happen. I’ve interviewed people on this show that are middle-class and it still happens.

Peta MacGillivray: You’re right, Marisa. And I think it’s with caution that we take that class analysis particularly-

Marisa: I see what you mean though.

Peta MacGillivray: – when we’re talking about matters of race. Yeah. But, you’re right. And I think there is lots of examples of people talking about their experience of, and interactions with police in particular, where people have not been able to get themselves out of really dangerous situations and interactions with the police. In fact, if I even think about myself, I would be even more forceful and to advocate for myself. And I’m not sure whether that would make any difference really. And I guess that’s where we see institutional racism being one of the biggest challenges that we face.

Marisa: Absolutely. And what about the push to raise Australia’s minimum age of criminal responsibility? What do you think of that?

Peta MacGillivray: I think it’s incredibly important. And the reason is, is because of what I said earlier about Aboriginal young people coming into the system much earlier. So what we know is that if the police can charge, they usually will. And what that does is it drags kids into the system and into the court system. And that’s what we call criminogenic, which is basically means crime causing. So we know that kids coming into the system and into the children’s school, it makes things much worse. And the sooner that you do it, the longer we know that the kids stay in the system. So if we can prevent that for as long as possible, that’s why it matters. So there’s a campaign to raise the age to 14. It could potentially be higher than that, I think. In some jurisdictions internationally it’s as late as 18 years old before a young person can be charged and held criminally liable.

But the point is, is that when we raise the age then there has to be other things that we can do with a young person that’s dealing with whatever is bringing them into contact with the system. So these are community-based options. Options that don’t criminalise children, that don’t treat them as offenders is actually looking at whatever it is that’s bringing them into contact with the police. Is it homelessness? Is it unmet disability needs? Is it health issues? Is it a young person not getting the support they need to engage in school or get back in school? What is it that, and we know that the drivers of bringing kids into the system are these types of factors. But there’s so rarely attention and effort to address those things. And so that’s why raising the age as well. If we couldn’t rely on the criminal justice system to deal with young people, what else can we do? And there’s lots, there’s lots of community-based and community led options out there. It’s just about getting the resources and the support to expand those things.

Marisa: Peta, it seems to me 1788 all over again in many ways, really. Because when you look at it, the child protection system is broken. We’ve still got colonisation, so we need to decolonise. And then you’ve also got a situation where at the same time you’ve got this paternalistic thing going back from convict days where, you would go to prison for stealing a banana and, Peta, it’s still happening now.

Peta MacGillivray: It really is and I think, yeah, it’s a logic. It’s a very carceral, police minded logic to a lot of policy in this area, particularly for young people. And it’s funny a lot juvenile justice policy has not changed much since its invention in England when juvenile delinquency was first defined. And when you look at the kind of development of juvenile justice policy in Australia and in the UK and in the United States, all of the jurisdictions where we see indigenous young people disproportionately represented. It’s our kids that suffer the most from this very kind of archaic way of thinking about young people. And it’s in the work that I’m doing through the Yuwaya Ngarra-li partnership, which is a research collaboration partnership with the Dharriwaa Elders Group in Walgett in far West New South Wales. This is a very special partnership which is bringing the vision of the eldest group, which sees young people as future elders and therefore absolutely sacred to the community.

They say young people taking a strengths-based approach who have great capacity and capability, which the community recognises and the elders. Yuwaya Ngarra-li means vision in the Yuwaalaraay Gamilaraay language. And because the elders have a vision for thriving young people in their community. This is a sophisticated way of seeing young people, which mainstream Australia really fails. There is a lot that Indigenous people can teach mainstream about how to care for young people and support our young people to thrive. And juvenile justice policy is very… Yeah, it needs a big overhaul. It needs to be decolonized. We need new approaches and we need them immediately.

Marisa: Absolutely. And when we talk about disability, does that encompass physical disability also cognitive as well?

Peta MacGillivray: It does. Yeah, it does. So the work that we did with Eileen Baldry where we were focusing on Aboriginal people’s experiences in the criminal justice system that was focused on adults with intellectual disability and cognitive impairment and mental health needs as well. So the kind of full spectrum of those needs and in the work that I do at the moment, we take a very kind of young person centred approach where we see that young person for who they are and what their needs are. And so that could include both intellectual disability and physical disability and what else they have going on for them.

Marisa: Sorry to really look at… Thank you so much for clarifying that. So, Peta this is actually really good that we’re talking about this, isn’t it? We’ve got to get it out there because I think what tends to happen in the court system and also in contact with the police, is that not only is there a systemic racism, but there’s also a lack of education in regards to communication with First Nations People with Disability as well, and compared with that is the language barrier. If they don’t know English and they only know their own language.

Peta MacGillivray: That’s exactly right. And now research work that we did on Mob with intellectual disability in the criminal justice system when we were in Central Australia and even in parts of Northwest New South Wales, that was certainly what we saw with people’s communication because there was not person centered approaches. People were just kind of written off as being non-community kids. When in fact there was ways that people were trying to communicate, but they were ignored. Racism’s, the operation of racism where, assumptions and conclusions were made about people’s capacity to communicate because of the racist stereotypes. When in fact people do want to communicate and are able to, but there’s just not enough understanding of that.

So, and we find that for young people in particular, that’s a real challenge where young people in some parts of Northwest New South Wales, kids are learning that Indigenous languages before they’re learning to speak English. And sometimes when there are some challenges around communication because of undiagnosed disability or not understanding what someone’s disability needs are it’s tough speaking in languages, the way that people want to communicate. But when kids are going to school, that’s not well understood.

Marisa: Well, there’s a lot of deep-seated … absolutely. Sorry I interrupted you there. What did you say?

Peta MacGillivray: No, that’s fine.

Marisa: No, it’s all good. I mean Peta, there’s so much to talk about. Isn’t there to take or not really to talk about these things but can you comment lastly, on care and support, not punishment. And we were talking about this off air, so look, Aboriginal people really need to be on country, don’t they? And I’m wondering if you could just talk about some of the programs that could happen because they really isn’t much is there?

Peta MacGillivray: That’s right. I mean, I think in the work that I do with the Dharriwaa Elders Group for Yuwaya Ngarra-li, this is a remote community in far West New South Wales with lots of young people who uninfected in the community, people with disability needs. There’s never going to be specialist disability services that we lack with what we get in the city that are going to be available for communities. We want kind of solutions now, but what we do have a really strong Aboriginal community controlled health organisations and community controlled organisations that are there who can be supported, who can be resourced to provide the services and support for this group of people. So with young people in particular, we know that the elders they have really strong views about working with young people on country.

That being a protective factor that we say enough of police-led programs and activities. Enough of the kind of that presence in young people’s lives and more of the cultural connection, which we know keeps young people safe and strong in their identity and who they are. So what that looks like is activities which young people spending time with trusted adults and elders really encouraging that education focus. And if there are other more health and wellbeing focused activities, which young people say they need around, drug and education, drug and alcohol education or mental health support, that community controlled organisations is the best place to be delivering that. Because they’re the organisations that have the most understanding of what the needs are.

But one area of development that I think is still important is ways in which we supporting young people, including young people with disability to have the voices heard in this. I don’t think that, I think sometimes in community everything’s happening at a level of advocacy and sometimes it’s, there aren’t the processes set up or quite the experience to know how we facilitate young people’s participation in having their voices heard about what their needs are-

Marisa: That’s exactly why.

Peta MacGillivray: And that’s something that I’m really passionate about. I think I’m really passionate about how we in our communities are kind of giving, making the space and supporting young people to participate in that. I think that’s the next big challenge for us.

Marisa: It really is a challenge. But basically very, just lastly, with the criminal justice system, people with disability, including young and First Nations people are overrepresented, aren’t they? Across the criminal justice systems in Australia and are at heightened risk of violence, abuse, neglect, and exportation. How do you think the Royal Commission can help with that? Because I kind of cringe a little bit sometimes thinking what’s going to happen. Is it really… I’m not saying it’s bad. It’s a really fantastic endeavour, but will people be heard?

Peta MacGillivray: I think that’s right. And I think that’s a fear that a lot of us have about these Royal Commission processes. It can feel a bit like of kicking a tin can down the road. And the news breaking today was that heartbreaking and awfully distressing and violent footage of that young person in police custody in the Northern Territory. And that’s happening while the Royal Commission in the Northern Territory was on foot. And you still had that type of violence occurring. I think it’s fair to be a little bit cynical about what a Royal Commission can achieve. But I think now for myself as an advocate, it’s about following carefully what the Royal Commission is funding. There’s an important week long set of hearings in February, which are focused just on justice. And it’s about amplifying the work of the commission.

And really, I think it’s on the advocates to be engaging and getting the information out there, especially to communities and Mob and saying this stuff’s important because it will be up to us to keep pushing these fundings of the Royal Commission. And then also powerful advocates in government. I think there’s great opportunity for some systemic change here. But it will be as always the activist and the advocates. And as an Aboriginal researcher, I’m an Aboriginal woman before I’m a researcher. And I feel like I have big responsibilities too, in the spaces of privileged that I find myself in at universities in particular. It’s just we just have to keep on fighting at this point.

Marisa: Indeed, we do. Peta, thank you so much for coming on to the program. I really enjoyed your company and I’m hoping that we can connect again next year after the hearings.

Peta MacGillivray: Absolutely. Thanks for having me on Marisa.

Marisa: Thanks a lot.


Peta MacGillivray is a proud Kalkutungu and South Sea Islander woman, and a lawyer, currently leading social policy and research projects and UNSW Sydney. Peta was a researcher on the ARC Linkage Project ‘Indigenous Australians with Mental Health Disorders and Cognitive Disability in the Criminal Justice System’.


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.