Indefinite Detention Meets Colonial Dispossession
| Published date | 01 June 2017 |
| DOI | 10.1177/0964663916676650 |
| Author | Tamara Tulich,Harry Blagg,Zoe Bush |
| Date | 01 June 2017 |
| Subject Matter | Articles |
Article
Indefinite Detention
Meets Colonial
Dispossession:
Indigenous Youths With
Foetal Alcohol
Spectrum Disorders in a
White Settler Justice
System
Harry Blagg, Tamara Tulich and Zoe Bush
University of Western Australia, Australia
Abstract
Foetal alcohol spectrum disorder (FASD) is a non-diagnostic umbrella term
encompassing a spectrum of disorders caused by prenatal alcohol exposure. This
article reports on a qualitative research project undertaken in three Indigenous
communities in the West Kimberley region of Western Australia, intended to
develop diversionary pathways for Indigenous young people with FASD at risk of
enmeshment in the justice system. Rates of FASD in some parts of the West
Kimberley are comparable to the highest identified internationally. A diagnosis of
FASD amplifies the chances of Indigenous youth being caught up in the justice
system in Western Australia, including indefinite detention in prison if found unfit to
stand trial. A fresh diversionary paradigm is required. Employing a postcolonial
perspective, we explore issues surrounding law and justice intervention – and non-
intervention–inthelivesofIndigenouschild ren an d their families. The FASD
problem cannot be uncoupled from the history of colonial settlement and the multiple
traumas resulting from dispossession, nor can solving the problem be isolated from the
Corresponding author:
Harry Blagg, Law School, University of Western Australia, M253, 35 Stirling Highway, Crawley, WA 6009,
Australia.
Email: harry.blagg@uwa.edu
Social & Legal Studies
2017, Vol. 26(3) 333–358
ªThe Author(s) 2017
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DOI: 10.1177/0964663916676650
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broader task of decolonizing relationships between Indigenous people and the settler
mainstream. The decolonizing process involves expanding the role of Indigenous owned
and place-based processes and services embedded in Indigenous knowledge.
Keywords
Decolonizing justice, diversion, FASD, Indigenous owned processes, mentally impaired
accused
Introduction
This article employs a postcolonial perspective to explore issues surrounding justice
intervention in the lives of Indigenous children and young people with foetal alcohol
spectrum disorders (FASD) in the Kimberley region of Western Australia and maps out a
reform agenda based on what we call a ‘decolonizing’ alternative to the mainstream
justice process. It is informed by an action research project undertaken in three Indigen-
ous communities in the West Kimberley region of Western Australia, intended to
develop diversionary pathways for Indigenous young people with FASD at risk of
enmeshment in the justice system, in partnership with three Indigenous community
owned and managed services.
FASD refers to a collection of disorders resulting from exposure to alcohol in
utero, including foetal alcohol syndrome (FAS), partial FAS (pFAS) and alcohol-
related neurodevelopmental disorder. People with FASD may experience a range
of cognitive, social and behavioural difficulties, including difficulties with mem-
ory, impulse control and linking actions to consequences (Douglas, 2010). On the
face of it, FASD appears to be a ‘disability’ or ‘public health’ issue, neutral of
political context. We suggest otherwise and demonstrate how FASD intersects with
mechanisms of colonial control to expand the carceral net and further entrench
Indigenous people in the settler justice system. Some Indigenous youth with FASD
are being managed within a legal and carceral mesh of controls that perpetuate
colonial era patterns of institutionalization of the Indigenous other, while others
are denied support for their condition altogether due to a lack of appropriate
services in many Indigenous communities. This dichotomy is typical of life for
many in the post-colony, to be either warehoused in institutions or systemically
neglected by a settler colonial system that still cannot view them as ‘part of the
public’ (Raftery, 2006).
The article begins with a discussion of the current rate of contact between Indigenous
youth and the justice system in Western Australia, arguing that the massive disparity
between Indigenous and non-Indigenous rates of contact can be productively viewed
through a postcolonial lens. We then map out the current state of knowledge regarding
FASD and describe the ways one particular Aboriginal community (Fitzroy Crossing in
the remote Kimberley region of Western Australia) has responded to the problem. We
then discuss the, largely negative, impact of current legislation on people with FASD
and, finally, map out a reform agenda informed by what we call a decolonizing approach,
334 Social & Legal Studies 26(3)
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