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Preventing Crime and Promoting Rights for Indigenous Young People with Cognitive Disabilities and Mental Health Issues Part 3

CoverPreventing Crime and Promoting Rights for Indigenous Young People with Cognitive Disabilities and Mental Health Issues

Part 3

Stories from the field: A life
course approach to Indigenous young people with cognitive disabilities and
mental health issues

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The literature review pulls together some of the main concepts and findings
about Indigenous young people with cognitive disabilities and/ or mental health
issues from involvement with the juvenile justice system. However, we are also
interested in finding out what is actually happening on the ground for these
young people.

To do this, we have selected some promising programs and practices as case
studies. These will help answer our questions about what is working now, what
needs to change and ways forward to assist Indigenous young people with
cognitive disabilities and/ or mental health issues. These case studies are
supplemented by information, opinions and ideas from our consultations with a
range for experts and those working in the

The literature and consultations clearly showed that preventing offending
behaviour amongst Indigenous young people with cognitive disabilities and/ or
mental health issues is very complex. Some of the causes can be tracked back to
early childhood development but continue throughout the life course.
Importantly, they need to be understood in the specific social, cultural,
historical and economic context of Indigenous communities. Interventions are not
just about helping individuals but building the capacity of the communities that
they live in. The earlier services and supports are provided, the stronger the
community and social base, the better the outcomes will be.

Different interventions are required at different stages of life. To
illustrate some of the different needs at different points in time and their
relationship to offending behaviour, this section will map case studies across
the life course. Each life stage will be accompanied by some of our consultation
findings, some current service delivery challenges and case studies of programs
or services. This plots a continuum of holistic service delivery aimed at
preventing crime amongst Indigenous young people with cognitive disabilities
and/ or mental health issues.

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a) Common Themes

Building on solid foundations through holistic services

Indigenous young people with cognitive disabilities and/ or mental
health issues share many of the same needs as other Indigenous young people.
They come from the same families, the same communities but face additional
disadvantage due to their cognitive disability or mental health issue. For this
reason, the overwhelming response from our consultations was that Indigenous
young people with cognitive disabilities or mental health issues need to be
viewed holistically. Unless the entire spectrum of needs is addressed in a
culturally appropriate way, it is unlikely that specialist disability or mental
health services will effect much, if any change.

Similarly, there are good reasons to integrate capacity to deal with
cognitive disabilities and/ or mental health issues in accessible, culturally
appropriate services. Many of our consultations pointed out that Indigenous
young people don’t need another label and can suffer adverse consequences
if they are singled out from peers for special treatment. Furthermore, many of
the people consulted agreed that most of these young people would not attend a
service that was based on their mental health or cognitive disability status.
So, while it might seem like an easy fix to provide services specifically for
this group of young people, based on our consultations, tightly targeted service
provision is not the answer.

Overwhelmingly, participants suggested a holistic model of service to assist
all Indigenous young people, including those with cognitive disabilities and/ or
mental health issues. Associate Professor Helen Milroy, an Indigenous child and
adolescent psychiatrist, outlined this approach, encompassing physical,
psychological, social and spiritual/ cultural needs. Below is Professor
Milroy’s assessment of what is particularly relevant for all Indigenous young people including those with cognitive disabilities and/ or
mental health problems at risk of juvenile justice involvement.

  • Physical: Screening for chronic diseases such as rheumatic
    fever, kidney damage, anaemia, blood sugar levels. Screening and assessment of
    any development delay, indicating cognitive disability.
  • Psychological/ Emotional: Consideration of experiences of
    trauma, loss, identity issues. An assessment of coping styles, autonomy and
    emotional regulation, as well as awareness that most young people with cognitive
    disabilities do not have emotional language so may be acting out to express
  • Social: Understanding of family and where the young person
    fits in society. This requires Indigenous mentors and role models to help young
    people find their place in their communities. We need to help young people
    understand the story of Indigenous people, so that young people don’t keep
    thinking that the problems in communities are due to fact that they are simply
    ‘bad’. Instead, need to help them understand the history and turn
    negatives around to instil pride in their identity.
  • Spiritual/ Cultural: Need to validate culture and
    experiences and promote connection to ancestry through healing and culture

These principles should act as a checklist for all services for
Indigenous young people and have guided the selection of our case studies.

Holistic service delivery for Indigenous people is not a new idea and has
long been part of Indigenous health policy. However, according to Professor
Milroy, there are few programs that actually meet all of these needs. Indigenous
programs tend to meet social and spiritual/ cultural needs well. Mainstream
services deal better with physical and psychological/ emotional needs but
neither seems to be able to balance all of these areas of concern.

Holistic service delivery also means an interagency, whole of government
approach. The complex needs of Indigenous young people with cognitive
disabilities or mental health problems means that they are likely to be involved
with a range of government and non government services. Despite a whole raft of
policy documents and guidelines extolling the importance of interagency
cooperation, our consultations found that this is rarely the case on the

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Appropriate Assessments

At every stage, assessment and identification of children and young
people with cognitive disabilities and/ or mental health issues is crucial.
Without identification, children and young people are likely to have their needs
ignored or misinterpreted. This in turn, leads to poor outcomes. Despite the
importance of early identification of special needs, consultations suggested
that Indigenous young people with cognitive disabilities and/ or mental health
issues slipping through the gaps was the norm, rather than the exception.

Consistent with the literature review, there were real concerns about the
cultural bias in psychological assessments for cognitive disabilities and/ or
mental health issues. Although there is greater validity for visual tests,
according to workers from the Disability Services Commission in Western
Australia, ‘you may as well throw away the tests when you are working with
remote communities.’[159] Instead, workers ask parents or caregivers to compare the child or young person
to others the same age to get a sense of appropriate development. Assessment is
less clinical and ‘really a series of educated

Low confidence in assessment tools, continuing cultural bias, low
expectations of Indigenous children and low recognition amongst Indigenous
families and communities about possible cognitive and mental health all lead to
fewer assessments. Assessment is the gate keeping process so fewer assessments
equal lower levels of service provision.

To be eligible for disability support services a young person must have an IQ
less than 70. This knocks out a large group in the borderline intellectually
disabled range. Further, there was a belief amongst those we consulted that this
is an arbitrary line. Many young people with higher IQs may be functionally well
below the diagnostic mark. This is because any cognitive deficits are compounded
by living in disadvantaged environments.

Mental health assessments also function poorly with Indigenous young people.
Mental health assessments do not contextualise behaviour and symptoms within an
awareness of Indigenous history and experience. The magnitude of trauma in the
Indigenous community suggests that we need to seriously consider child and
adolescent behaviour in this context. Across the board, experts, workers and
community members felt that trauma and pain was at the root cause of most mental
health issues.

From a clinical point of view, Professor Milroy suggested that there is a
gross under diagnosis of Post Traumatic Stress Disorder (PTSD) in Indigenous
communities. PTSD is a psychological condition following exposure to a stressful
or traumatic experience. It has been recognised as a particular issue for
indigenous peoples around the world as:

the common experiences of childhood and adult trauma, removal of children
from families, interpersonal violence, substance abuse, and early death all
result in generations of people more likely to suffer from

The most commonly known symptom of PTSD is flash backs but also include
restlessness, insomnia, aggressiveness, hyper-arousal and hyper-vigilance,
depression, dissociation, emotional detachment and nightmares.

Many Indigenous young people are never diagnosed with PTSD. Instead, their
behaviour is usually labelled as a conduct disorder. Alternatively, young
people who report hearing, seeing or speaking to ancestors are often diagnosed
with psychotic illnesses such as schizophrenia when Professor Milroy believed
that for the most part they are likely to have suffered from PTSD or depression.
These diagnoses require very different treatments so there is no surprise that
little progress is made with young people who are incorrectly diagnosed.

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Indigenous Concepts of Disability

Consultations affirmed the need to look at Indigenous concepts and
experiences of disability. Workers from the Western Australian Disability
Services Commission felt that some Indigenous families and communities did not
recognise cognitive disability in the same way as non- Indigenous people. That
is, signs of developmental delay were often attributed to the person being
‘a bit slow’ and not necessarily requiring further support.

Concepts of disability seem to be based on whether or not a person is
functioning in the community context rather than diagnostic labels. For
instance, Disability Services Commission staff related a case of a young person,
who had been seen as ‘slow’, had struggled at school and
didn’t communicate well. However, it wasn’t until his family found
out that he didn’t understand, and in fact transgressed cultural law, that
they thought something might be wrong and sought assistance.

Indigenous disability advocates from the NSW Aboriginal Disability Network
agreed that disability can mean different things in different communities and is
often a ‘difficult
conversation’.[162] Nonetheless, disability causes real needs and ultimately diminishes a young
person’s ability to participate in society if they are not given
appropriate support and access. For this reason, any attempt to address
disability should be within a rights based framework, rather than highlighting
deficits and conferring labels.

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Different models of service

The different circumstances and needs of Indigenous
people with cognitive disabilities and/ or mental health issues require
different models of service delivery. Many practitioners and experts in the
field affirmed the vital role of Indigenous controlled services as a way to
access culturally appropriate service but also help ‘sell’ their own
services. Forming these sorts of partnerships can help make services, which may
otherwise be viewed with suspicion, more accessible.

According to Shane Brown, South Sydney Youth Services, in terms of providing
mental health care it is essential to place services outside of mainstream
mental health services for young
people.[163] There is still a lot
of stigma around mental illness and many young people do not want to be
labelled. Therefore, they are more likely to use a service at a generic youth
service or other outreach method.

Given that some Indigenous people live in remote areas, there is a need for
greater flexibility. The Disability Services Commission in Western Australia has
extensive experience in meeting these challenges. For them, it is thinking about
alternative ways to purchase services, co-location with other services and
economies of scale. So, if there is only one person in Fitzroy Crossing that
really needs service, it can pay to be more flexible with service eligibility in
order to get more people utilising a service.

Text Box 7
Making disability services work in a
remote location

An example of how these concepts can come together is seen in a case from the
Disability Service Commission about an Indigenous young man with mild to
moderate intellectual disability.

He had come into contact with the justice system. He tends to ‘get into
strife when led by non ID peers’ which is compounded by drinking. He lives
in a remote area with no easily accessible services, although he is clearly in
need of support to try and prevent further offending.

To get around this, workers came up with a plan to use existing Aboriginal
Health Services in the area and funded a disability worker for one day a week.
The worker has identified triggers for offending, as well as his strengths, and
found that he is ok when his family are around. The worker keeps an eye of the
family situation, provides support and has tried to influence peers not to
“stir him up”. There have also been conversations with the Police
about his behaviour and how best to manage him without escalating conflict. So
far, he has not re offended.[164]

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b) The early years and family support

It should be noted that
while there is some consideration of the early years, this report is primarily
focused on the particular circumstances around older children and young people.
However, the common message through all of the consultations and case studies
was the need to intervene early, providing a solid family and community base.
When asked what needs to be done to prevent Indigenous young people with
cognitive disabilities and/ or mental health issues from offending, most of the
people made the connection between keeping families together, happy supported
childhoods and good outcomes for children and young people, regardless of
cognitive disability or mental health status.

Unfortunately, consultations reinforced that families are struggling, often
resulting in high levels of child protection involvement. According to Phillip
Narkle, respected Aboriginal Elder and Aboriginal Team Advisor with the Western
Australian Intensive Supervision Program, ‘it is isolation and separation
from family, friends and communities that really damages these
kids.’[165] This is not news
to anyone, but when we consider the extra complexity of disability or mental
health issues on struggling families, we can see that this group of children and
young people are at higher risk of being separated from their families. Based on
stories from practitioners, a majority of the Indigenous young people with
cognitive disabilities and/ or mental health issues have had involvement with
the juvenile justice system and the child protection system.

Understanding and meeting the needs of young children with disabilities or
mental health issues is essential to support families. Our consultations
confirmed the picture of extreme socio- economic disadvantage, a very heavy
burden of loss, family dysfunction, alcohol and drug use, child abuse, poor
health and trauma. This burden of stress impaired family and community capacity
to identify cognitive disability or mental health issues early on. Put simply,
within such urgent, competing priorities, a child’s developmental
milestones or early signs of mental health issues tend to go unnoticed until
they reach crisis point. While families are struggling to meet basic needs,
these issues remain unnoticed.

However, there was a consensus that more needs to be done to build Indigenous
family capacity to pick up these early signs. A good suggestion from the
Aboriginal Disability Network was to increase the capacity of Aboriginal Health
Workers to screen for any issues during routine health checks. Theoretically,
while this should be happening on the ground, due to the level of stress and
under resourcing, many Aboriginal health workers are too stretched to undertake
this work. Damian Griffis, from the Aboriginal Disability Network notes that
many do not have the specific disability knowledge required.

Similarly, there is also a need for more skills and education to support
screening for mental health issues. One positive initiative is Aboriginal and
Torres Strait Islander Mental Health First Aid Course
(AMHFA). The AMHFA comprises of a 14-hour Mental Health First Aid Course and a
research and evaluation arm. The purpose of the training is to provide people
that come into contact with people with mental illness with basic skills and
knowledge around causes, symptoms and management of mental illness. Like
physical first aid treatment, it provides non- medical professionals with the
opportunity to intervene before professional help arrives and increase their
confidence in dealing with serious situations. The AMHFA is still in the pilot
phase but is already yielding some good results.

The location of screening services and interventions is also crucial. Based
on extensive research with Indigenous people with disabilities around NSW, Mr
Griffis believed that there is still a very real fear that any disability or
mental health issues of a child will be interpreted as poor parenting. Given
past and present experiences of Indigenous communities, this is likely to lead
to child protection action and removal of children. Locating these types of
services in more trusted Indigenous controlled services could help over come
this barrier.

Jenny Thomsen, from the Aboriginal Disability Network also suggested building
awareness of disability and mental health issues amongst mothers and carers
through ‘informal and friendly’ interactions such as mothers groups.
There is also a role for family support and parenting programs to help families
deal with cognitive disabilities and mental health problems. These children
often act out and display difficult behaviours which are very difficult for

Any such parenting support programs need to be sensitive to the interplay
between Aboriginal child rearing practices and family strain. Professor Milroy
explained that Indigenous children have autonomy from an early age:

This works if a family is functional and well buffered, so that a child can
learn independence within boundaries but if a family is dysfunctional, the child
gets independence with no boundaries. They are seen as adults by 10 years of
age, have no trust for others and won’t listen to adults. So what is
adaptive in the first 10 years to keep them safe becomes maladaptive later

The challenge is the help parents learn how to set boundaries with children
in a way that still fosters appropriate independence and respect.

Text Box 8
Promising practice for Indigenous
children in out of home care

Unfortunately, not all children are able to stay in the care of their
families for child protection issues. We know that young people in care are very
disadvantaged across a range of indicators including health, education and
involvement with the criminal justice system.

While there is little Australian evidence, we know from United States and
United Kingdom research that children entering out of home care have a high
prevalence of health problems and developmental
disabilities.[167] United States
research shows that 84% of children in a sample of foster care have
developmental or psychological
problems.[168]Given the heavy
burden of poor health on Indigenous populations, the Royal Australian College of
Physicians state that:

Aboriginal and Torres Strait Islander children coming into out of home care
suffer an adverse double effect of

Case study: Kari Clinic

Kari Aboriginal Resource Inc coordinates out of home care for Indigenous
children across South Western Sydney. Children can be aged between 0-17 years,
although the majority are between 4-12 years of age.

Kari found that many of the children needing foster care would come in and
out of the system without having their health needs assessed or met. To address
this gap, the CEO of Kari, Paul Ralph, approached Liverpool Hospital about
provision of immediate health assessments of children being cared for by Kari.

Following negotiations with Kari, Health and Department of Community Services
established a community clinic offering comprehensive health assessments to all
children entering out of home care with Kari in 2003. Children are provided

  • Initial clinic with assessment provided by a paediatrician or early
    childhood nurse;
  • Developmental screening and full assessment if required;
  • Referral to speech therapy, occupational therapy and physiotherapy if
    required and
  • Priority access to dental, hearing and vision checks.

A comprehensive care plan is developed for each child which can be
easily accessed later to ensure continuity of care and avoid duplication of
service and assessment.

At this stage there is complete data on 79 children who range in age from 2
months to 13 years. The average age is 4.6 years. The majority of the children
have suffered chronic neglect, physical abuse, exposure to domestic violence and
around 20% had concerns about sexual abuse. The parents of the children
presented with significant substance use and incarceration. Impaired cognitive
abilities were a factor for some parents and 23% were known have experienced
psychosis recently.

Based on the data collection:

  • 32% had global developmental delay (of these 25% were in the moderate to
    severe category for intellectual delay);
  • 63% had speech delay;
  • 32% had behavioural or learning problems;
  • 53% had hearing problems; and
  • 19% had vision problems.

In terms of previous assessments, 42% had been seen by a
paediatrician and 13% had undergone psychometric or school assessments. However,
only 2 of the foster carers had copies of the previous reports, so there were
gaps in their knowledge of the child’s needs.

One of the strengths of the model, according to Paul Ralph, is that the
health assessments are accompanied by recommendations that can be reviewed by
the health clinic team. 30% of the children were reviewed in the clinic and
received further intervention.

Good partnerships have been developed between carers, Kari, Health and
Department of Community Services. However, there are still challenges to ensure
the recommendations are met. An independent qualitative review has found that
while identification is occurring there are obstacles around implementation of

  • It can be difficult to contact caseworkers or foster parents about
    recommendations and follow up;
  • Casewokers were relying on foster parents to follow through with
  • Foster parents were sometimes reluctant to attend clinic or follow up on
  • Placements can breakdown and clinic staff are not necessarily informed.

Despite these barriers, Paul Ralph is ‘very proud’ of
the clinic and thinks that it has made a real difference to the lives to the
children. It is a significant breakthrough that these young people are actually
receiving full health and developmental checks, with good quality reports and
recommendations provided to foster carers. This can empower foster parents to
set the children on the right path.

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c) The school years

School, particularly primary education should be the basis for good outcomes
for all children. For Indigenous young people with cognitive disabilities or
mental health issues it should be a chance to identify impairments that impact
on learning and put appropriate supports in place.

The predominant focus of our consultations was primary school. Primary school
sets the literacy, numeracy and skills foundation needed for high school. If
these skills are not mastered, children are unlikely to cope with high school.
We know that Indigenous young people who end up in the juvenile justice system
have low educational outcomes, dropping out of school early. This means that
most of their education is probably at a primary school level.

Associate Professor Colleen Hayward, Manager of the Kulunga Research Network
felt that the findings of the Western Australian Aboriginal Child Health Survey
confirm this picture. Their research showed that no real gains have been made in
educational outcomes for Indigenous young people over the past thirty years.
Aboriginal children start from behind and are never able to make up the ground.

One promising initiative being implemented, according to Professor Hayward,
is the Australian Early Development Index. The Australian Early Development
Index (AEDI) is a measurement of a child’s development, based on scores
from a teacher completed checklist. It is used for children in their first year
of school to look at aspects of:

  • physical health and wellbeing;
  • social competence;
  • emotional maturity;
  • language and cognitive skills; and
  • communication skills and general

The AEDI is currently being validated across the nation. The
Telethon Institute is looking at a culturally appropriate adaptation for
Indigenous young people. The AEDI is not designed to specifically diagnose
children with specific learning disabilities or areas of developmental delay, it
does act as a preliminary way of looking at what needs or areas for further
consideration are present for children.

The inaccurate identification of Indigenous children as having cognitive
disabilities seems to be a very real issue in Indigenous communities. That is,
there are a large number of Indigenous young people who are being labelled as
having a cognitive disability when in fact they don’t, or have a mental
health issue instead. For Dr Chris Sarra, Director of the Indigenous Education
Leadership Institution, the issue is entwined with the negative perceptions and
expectations of Indigenous children.

Dr Sarra draws his expertise from over twenty years in the education system
as a teacher, guidance officer, academic and principal. He was the first
Indigenous principal at Cherbourg State School. A lot has been written about how
to improve Indigenous education outcomes, but Dr Sarra’s leadership at
Cherbourg seems to have actually put these principles into practice. A key part
of the process was shifting attitudes of school staff, community and children.

Dr Sarra argued that mainstream Australia has very negative perceptions of
Indigenous people. This filters down to those involved with the education
system. Some teachers have lower expectations of Indigenous children based on
the ‘complexity’[171] of Indigenous young people and perceptions that Indigenous families
‘don’t value
education.’[172] Indigenous
children and young people internalise these perceptions and low expectations to
the extent that there is ‘collusion between school and children’s
mind sets’[173] which
ultimately produce failure. Judy Gould, a speech pathologist and doctorate
researcher who has worked extensively with Indigenous young people in schools
across Australia, characterised a ‘culture of
deficit’[174] in many

In a context where schools regard Indigenous children and young
people with low expectations and hold attitudes about children’s capacity
based on cultural assumptions, testing for intellectual disability is frequently
misused. According to Ms Gould, testing for intellectual or cognitive disability
can often be used to ‘confirm what they think about
kids’[175] rather than
constructively investigating any actual disability issues. Young people who act
out are often labelled as intellectually impaired without any consideration of
other issues that may be impacting on their behaviour such as family stress,
language problems and particularly, hearing problems. Based on her research, Ms
Gould found that instead of a child’s needs being considered holistically,
the ‘default setting is intellectual

A lack of contextual awareness creates a very limiting lens to look at
Indigenous young people’s experiences at school. As well as incorrectly
assessing cognitive disabilities, Professor Milroy noted the potential to
misunderstand young people with mental health issues. As previously mentioned,
at least anecdotally, there appears to be a large number of young people who
could be diagnosed with post traumatic stress disorder. There is a real risk
that their behaviour will be interpreted as cognitive disability rather than
ringing alarm bells about mental health and leading to appropriate treatment.
Professor Milroy has worked with children who have been expelled from school as
early as year one due to undiagnosed PTSD. This represents a failure of the
education system to look behind behaviours to understand underlying issues.

Dr Sarra and Ms Gould observed a misplaced view amongst some staff that even
if the young people do not actually have an actual cognitive disability or
intellectual impairment, ‘at least they are getting extra help at
school’.[177] However, the
fundamental flaw in this argument is that being labelled as having a cognitive
disability or intellectual impairment often leads to worse, not better outcomes,
for the child.

As previously noted in the literature review, incorrect diagnosis based on
Indigenous status may raise a case for indirect discrimination. This may be
covered under the Racial Discrimination Act 1975 even if being identified
as having a disability lead to additional services. This is because the label
and subsequent treatment are less favourable and detrimentally affect the
child’s rights.

For instance, Ms Gould recounted an all too common scenario, where a child in
Year 1 was doing well at school but the family had come into hardship and were
dealing with grief and loss issues. The child then started acting out in class
and was soon treated as ‘naughty’ and assessed as having an
intellectual impairment. The child was taken out of mainstream classes and
placed in special education instead. There was no consideration of the family
issues at play and the child was taken away from peers and the only teaching aid
that was actually able to engage the child in learning.

Children are acutely aware of labels and categories. Even from Year 1, the
children knew the special education class as the ‘dummies class’.
This impacts on children’s self esteem, identity and most importantly,
desire to attend school. Dr Sarra believes that children (and teachers) perform
to expectations, which can have serious consequences for children who are
labelled as ‘dummies’ and taken away from peers.

This particular
child was only in the special education class for around a year but during that
year lost track of the work and skills being learnt by the children in the
mainstream classes (which was already way behind minimum standards). So while
there probably wasn’t a good reason for the child be in the special class,
the child ‘lost a year of learning opportunity, you can’t get that
back.’[178] Ms Gould
assessed that this may have damaged this young person’s chances. Without
these foundational skills, children struggle to keep up and gradually disengage
from school.

Another reason for the inappropriate labelling of children is tied to
funding. Children with cognitive disabilities or requiring additional support
obviously attract additional funding to schools. At least in Queensland, funding
used to be allocated to individual students to purchase teacher’s aide
hours and other support. It is now provided to schools without restriction and
can be used to pay for additional teachers rather than support specific to the
individual child. Anecdotally there is evidence of Indigenous children being
assessed as intellectually impaired without even informing the parents or

Aside from the enormous ethical issues, how can any positive change be made
by the school, and with the family, if there is not basic communication and
cooperation in the child’s best interest? Legally, it would seem that not
consulting with the child or their parent(s) is in breach of the Disability
Standards for Education
under the Disability Discrimination Act 1992. These standards state:

Before the education provider makes an adjustment for the student, the
education provider must consult the student, or an associate of the student,

  1. whether the adjustment is reasonable; and
  2. the extent to which the adjustment would achieve the aim in paragraph 4.2
    (3) (b), 5.2 (2) (b), 7.2 (5) (b) or 7.2 (6) (b) in relation to the student;
  3. whether there is any other reasonable adjustment that would be less
    disruptive and intrusive and no less beneficial for the student.

Issues of incorrect assessment aside, data shows that there is
still a group of Indigenous young people with cognitive disabilities and/ or
mental health issues. The question is how do we assist these children to enhance
life chances? Once again, those we consulted with highlighted the similarities
more than the differences of Indigenous children without cognitive disabilities.
As the research has been telling us for the last 30 years, we need an education
system that engages with families and communities; that provides a strong
literacy and numeracy base early in life; and fosters a strong Indigenous
identity. We heard that there are lots of strategies and policies but only
pockets of practice where this is happening on the ground.

Teachers and practitioners recommended that getting assessment right is the
first step. This means using standard IQ and other testing, but only as part of
a ‘bigger picture that looks at young people
holistically.’[179]After all
of these things have been considered, if a cognitive disability is still found,
there needs to be a conversation with parents or caregivers about what this
means. One of the main advantages of identifying a cognitive disability early
should be that it increases the chances of the family understanding and dealing
with a young person’s behaviours. In terms of school support, especially
for Indigenous children, the preferred strategy is working with them in
mainstream classes with a teacher’s aide wherever possible, rather than
segregating them from peers.

Text Box 9
What can be achieved- Cherbourg State

Cherbourg State School is an Aboriginal Community School, 300kms out of
Brisbane on the site of the former Cherbourg mission. It had the reputation of
one of the most disadvantaged and dysfunctional schools in Queensland, with low
literacy and numeracy outcomes and very high levels of absenteeism.

When Dr Chris Sarra arrived as the principal in 1998 he set about making
fundamental changes to school. He challenged school staff to look at their
attitudes towards students and raise their expectations of the children. He also
challenged children to raise their own expectations and required them to meet
higher standards of behaviour, attendance and learning.

This seems to have worked. Over an eighteen-month period unexplained absences
dropped by 94%. Improved attendance also led to better educational outcomes. The
diagnostic reading tests of year two students originally showed that 100% of
children were below expected reading rates. Two years later, less than half were
below expected reading levels. These shifts were also evident for older
children. In 1999 all of the year 7 students were significantly below the state
average for literacy, by 2004, 17 of 21 year 7 students were achieving within
the state average range. [180]

The foundation for creating these changes was a promotion of positive models
of Indigenous identity. Dr Sarra explains that:

When we talked about
developing a positive identity, this meant for us being Strong. When we talked
about achieving outcomes, this meant for us to being smart. So we developed a
new motto- ‘Strong and Smart’. Today everywhere you go in our school
you will see that all of the behaviour of all of the pupils and of the staff
hangs off being strong and

To get the children to really take the new motto on board, a new school song
based on a football song was adopted enthusiastically by the children:

Jingle Bells, Jingle Bells
Cherbourg School is here.
young and black and deadly,
Come and hear us cheer.

Bring of every challenge,
And put us to the test.
We’re from
Cherbourg State School,
And you know we’re the best.

Dr Sarra describes these changes as ‘simple yet
complex’.[182] The reason
for success was that it provided ‘leverage’ to address thinking and
behaviour. Dr Sarra could then challenge the children to put it into

It has to be more than words coming out of your mouth...the things that come
out of your mouth have to match the way you you can’t say to
me that you are ‘strong and smart’ and then go missing from
school... You can’t tell me that you are young and black and deadly, and
then play up and give the teacher a hard

The other crucial component in giving children pride in their identity was an
Aboriginal studies program for all students. Importantly, it tried to balance
and explain some of the problems facing the community so that:

Our children had to understand that while such ugly issues were prominent in
Indigenous communities, including Cherbourg, they are unquestionably the legacy
of other historical and sociological processes, and not the legacy of being

This quality of leadership and the principles for teaching provided a
foundation for all Indigenous children. From Dr Sarra’s experience at
Cherbourg State School, unless we manage to get these things right we
can’t really begin to address the specific needs of Indigenous young
people with cognitive disabilities and/ or mental health issues ‘in a
meaningful way.’[185]

Since Dr Sarra has left the school, some of the progress has been maintained
and Cherbourg is now a much more positive place than before. Dr Sarra
acknowledges that there is no single, easy fix to Indigenous education as it
requires attitude change rather than just programs.

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d) Early Adolescence
and Offending

So far we have seen that struggling community and family backgrounds, lack of
early identification and support, the systemic failure of the school system and
disengagement from education all mark a steady progression into offending for
many Indigenous young people with cognitive disabilities or mental health
problems. By the time they reach late childhood and early adolescence, our
consultations have found that many are already involved in anti-social or
offending behaviour.

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Causes of Offending and Early Intervention

The reasons for involvement in offending are similar again, to
other Indigenous young people. However, this group is more vulnerable and less
understood by police and other criminal justice workers. For young people who
have struggled at school due to a cognitive disability or mental health issue,
offending often relates to the child development principle of
‘mastery’. Professor Milroy stated that because many of these young
people didn’t master skills at school, they keep trying until they find
something that they are good at. For many of these young people, being
‘tough’ and then getting into trouble is something that fills that
gap. Conversely, if support and encouragement was given to these young people to
channel their strengths and energies into something more positive, they could
also achieve a sense of mastery and increased self esteem without offending and
anti-social behaviour.

Identity was a common theme in all of our
consultations. As previously stated, Indigenous young people often struggle to
find role models and cultural identity. Linda Bamblett, Manager of the Victorian
Aboriginal Community Services Association Limited (VACSAL) that provides support
to young Kooris involved with the juvenile justice system believed that many of
their clients are ‘like fringe dwellers on Koori and mainstream
society’[186] and are
seeking some sort of belonging.

One way of creating belonging and identity is the formation of groups. For
instance in Melbourne, Ms Bamblett argued that a group of Koori young people
have, ‘taken it upon themselves to make their own cultural identity,
belonging and
acceptance’[187] through the
formation of the ‘Koori Kripps’. This group of young people is
involved in offending and fights other similar groups of young people. Workers
felt that young people with cognitive disabilities were especially susceptible
to joining these groups as they may already have lower self-awareness and self

The situation has caused considerable concern in the community and people
have come together to try and address the reasons that have led these young
people into this group rather than more positive ways of expressing their
identity. Without condoning the bad behaviour and potential for violence, there
was a real acknowledgment that these groups can form in response to perceived or
real threats from other groups. Due to low confidence in police protection,
these young people reportedly decide to protect themselves.

All of the
workers on the ground noted the need to deal with the issue of groups of young
people, or ‘gangs’ with great sensitivity. There is the potential
for the perception of ‘criminal gangs’ to be politicised and create
demonising images of Indigenous young people. The media portrayal of the
Adelaide ‘Gang of 49’ was cited as testament to the danger of
reinforcing of negative stereotypes. If young people are forming these groups
because they feel alienated and marginalised from society, such approaches are
insensitive and counter productive.

We also can’t underestimate the impact of poverty on these young
peoples’ involvement in offending. We heard many stories of Indigenous
young people, especially in rural and remote areas stealing to survive. Young
people with cognitive disabilities can lack the skills to negotiate ‘the
system’ and engage in rather reckless offences to get money for food and
basic necessities.

Another recurrent theme in the consultations was the
impact of family violence, leading to offending and also mental health problems.
Lester Corning, manager of the Victorian Aboriginal Health Service Family
Counselling Service, told us of his experience working with children who were
stealing to survive as their parents were off gambling or drinking. The children
would then get caught; often the father would hold the mother responsible,
resulting in severe abuse and violence. The children would witness this
violence, often impacting on their own mental health. Mr Corning described this

These kids are on a roundabout of floggings and hurt. They get flung off
occasionally, we call that suicide or mental health but not much happens to stop

Many of these young people find themselves in need of mental health services.
However, we heard from practitioners that there is a severe lack of mental
health services. For instance, Anthony Brown, Indigenous family counsellor at
the Victorian Health Service, estimated that they would receive about thirty
referrals for service in a month, whilst they are only resourced to work with
around thirty families in a year. Many of these young people are involved with
juvenile justice or at extreme risk of involvement.

Text Box 10

Promising Practice:
Tirkandi Inaburra Cultural
and Development Centre

Tirkandi Inaburra is an Aboriginal community controlled early intervention
centre in Coleambally, Central Southern NSW, which provides a culturally based
residential program for Aboriginal boys between 12-15 years of age. The aim of
the centre is to reduce the likelihood of Indigenous youth becoming involved in
the criminal justice system.

Tirkandi Inaburra means ‘learn to dream’ in the Wiradjuri
language and the centre’s vision is ‘Boys to Men Learning to Live
their Dream’.

Tirkandi is the only program of its kind in Australia. Funded by the NSW
Attorney General’s Department, it has been operating since January 2006.
While it is still in the pilot phase there seems to be some very promising
results and changes in the participants.

Tirkandi Inaburra’s program provides educational, recreational, life
and living skills and cultural awareness activities which develop a
participant’s skills and abilities and strengthens his self-worth,
resilience and cultural identity.

At any one time, up to 16 boys can participate in program. The program runs
for three to six months and is voluntary. The program targets boys who are at
risk of becoming involved in the juvenile justice system.

School based education is an integral part of the program, with a school
provided on site. Intensive support and learning is facilitated by three
teachers and two teacher’s assistants.

There is a strong strength based therapeutic element running throughout the
program. Each participant has an individual case plan. Case planning includes
planning for exit following the young person ‘graduation’ from the

While Tirkandi Inaburra doesn’t specifically target young people with
cognitive disabilities or mental health issues, the Executive Officer Colleen
Murray is of the opinion that a significant number of the young people that come
to the centre have undiagnosed and untreated cognitive issues which have
effected their education. All of the boys present with challenging behaviours
which are often labelled as Attention Deficit Hyperactivity Disorder. The
reality is that many of these behaviours are ‘learned’ responses and
need to be unlearnt. The centre takes the time to consider the unacceptable
behaviours displayed and attempts to address the underlying issues which have
caused such behaviours.

Tirkandi Inaburra is structured around school terms. For many participants,
their time on the program is only time in their lives that they have attended a
whole term of school.

All Tirkandi Inaburra’s activities, including school based education
are delivered using a Connected Outcome Groups framework (COGS). The
participants are challenged to learn and are provided with intensive

The dedicated and experienced staff at the centre take the time to identify
any possible cognitive issues that may impact on learning.

Attending school consistently is not the only new experience for the boys.
The program provides the participants with many opportunities to engage and
learn from new experiences.

For instance, in cultural activities they learn to make and play didgeridoos,
do Aboriginal dances and learn about Aboriginal history. In life and living
skills activities they learn how to cook and clean and take care of themselves
and are empowered to make better decisions by increasing their emotional
intelligence in subjects such as positive thinking, conflict resolution, problem
solving, respect etc. In the sport and recreation activities they are exposed to
the concept of team and trust and encouraged by the rule of ‘have a go
and try your best’.

It has become patently obvious to the staff that the vast majority of the
boys have been denied attention, praise and positive reinforcement and have
significant self esteem and self image issues. In particular the boys view their
time at school as a failure, they are often labelled as ‘bad kids’
and are placed in remedial classes which in essence are behavioural classes and
are expected to achieve little. In addition they receive little support and
encouragement from family members.

The program and all the interactions with staff are built on recognising
strengths and developing mutual respect. Aboriginal workers play a huge role in
helping the boys understand their culture and connections. Many of the boys
don’t know where they fit in. At the centre they are supported in a safe,
secure and positive environment and are taught to be proud of their identity.

Tirkandi Inaburra is well linked into the broader community with
relationships with government and non government agencies including Department
of Education, Juvenile Justice, Police, Department of Community Services,
Greater Southern Area Health Service and the Griffith Aboriginal Medical

At the centre the boys are introduced to rigor, boundaries and expectations.
They are expected to conform to the rules of the centre which are:

  • Have respect
  • Behave Well
  • Keep Clean
  • Stay safe
  • Have a Go and Try Your Best

The participants are ‘invited to take responsibility’ for their
own decisions and the consequences of those decisions. They are rewarded for
good choices and penalised by way of a consequence for poor choices. This
strategy, coupled with strength based communication, an increased emotional
intelligence and a nurturing environment has demonstrated that overtime a
participant can make better decisions, “unlearn” his inappropriate
responses and modify his own behaviours.

Not all of the participants who are accepted into the program graduate from
the program. As this is a ‘voluntary’ program some leave of their
own volition and others are sent home for continual non-compliance or exhibiting
unacceptable levels of violent or threatening behaviour. Introducing rigor and
boundaries into the lives of boys who have had little exposure to these concepts
and confronting challenging and unacceptable behaviours does cause an escalation
of poor behaviour in the initial weeks of the program. But in order to change
the pathway in life for participants these anti-social behaviours must indeed be

At the end of each school term a formal graduation ceremony is held for those
boys that do rise to the challenge and do commit to changing their pathway in
life. The ceremony is a celebration of the achievements of the boys and is
always well attended by family and community members.

Tirkandi Inaburra is currently being evaluated but anecdotally, at least, it
seems to be making some big changes. The Executive Officer estimates that close
to 90% of the graduates of the centre have re-engaged with school and community
life and families are seeing positive changes in their young people. As one
said, ‘I think I brought the wrong kid home with me but I’m keeping
this one!’.
Tirkandi Inaburra is an innovative program with the
potential to prevent offending of Indigenous young people, including those with
mental health and cognitive disabilities. The only concern now is

The Executive Officer is convinced that Tirkandi Inaburra is making a
difference. But she is also acutely aware that for a participant to remain
resilient and to sustain the personal change he has worked so hard to achieve,
he needs the ongoing support of the significant others in his life.

Family members, schools and communities need to now match the conviction of
this centre and its graduates and continue to support and guide these young men
throughout their lives beyond this centre

As Professor Cunneen pointed out, they are essentially doing all the work of
the Department of Juvenile Justice but with a fraction of the
resources.[189] This highlights
the importance of meaningful support from government agencies and partners to
ensure success.

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Police Contact

Consistent with the literature review, in the field it was reported
that Indigenous young people with cognitive disabilities and/ or mental health
issues are more likely to have involvement with the police. Notably, in Western
Australia, the Western Australian Aboriginal Legal Service found that the
Northbridge curfew and move on laws disproportionately affect Indigenous people
and people with mental health issues. This was due to greater use of public
space and high levels of homelessness. In their experience, when young people
were asked to move on by police, often for trivial reasons, the situation
quickly escalates, leading to further charges. Adding mental illness or
cognitive disability to this volatile mix and the ‘trifecta’ of
offensive behaviour or offensive language plus resist arrest and assault police
officer, often brought these young people into the juvenile justice system.

Police act as gatekeepers of the juvenile justice system. Police have great
discretion to either charge or divert young people. While all agreed that
diversion was the ultimate goal, unless something is done to assist young people
at the point of police diversion or contact, it is highly likely that they will
be in trouble again. Although some young people get in trouble as a one off,
many of the Indigenous young people with complex needs, including cognitive
disabilities and/ or mental health issues, continue offending. So while Police
must use cautions and warning and other diversionary options, there is an
argument for providing some sort of ‘help and not just a slap on the
wrist’, as an early intervention. However, this must be balanced with net
widening concerns and be voluntary.

Text Box 11
Promising Practice:

Killara Youth Support Services

Killara Youth Support Services is an early intervention service run by the
Western Australian Department of Corrective Services. Killara provides an
outreach service to young people and their families who have been involved with
the Police, or may be at risk of Police involvement. Killara operates from 8am
to 1am seven days a week.

Most of the young people who work with Killara have been cautioned by the
Police. Caseworkers look at all the police cautions issued to young people in
the metropolitan area and contact young people and families to offer assistance.
Referrals can also be received from schools and young people and families

Killara offers short term counselling and support on a purely voluntary
basis. They offer assistance with issues such as family conflict, drug and
alcohol use, school and behaviour problems. Work usually occurs in the young
person’s or family home. Staff are often involved in assisting parents
with parenting skills such as setting boundaries and managing conflict. As well
as counselling, staff provide referrals and links to other services and have a
dedicated education worker who helps with transitions back into the school

Killara staff report that around 15% of their client group is Indigenous.
Killara employs some Indigenous caseworkers who tend to work with any Indigenous
young people and their families.

Given the very high levels of over representation of Indigenous young people
in the custody, only 15% seems a relatively low rate. This may be reflective of
the lower usage of cautions with Indigenous young people and that the service is
voluntary. Staff acknowledge that it can be very difficult to ‘sell’
Killara to Indigenous young people and their families when they know it is
associated with the Department of Corrective Services. However, Indigenous staff
go some way to breaking down these barriers.

In an acknowledgement of the success of the Killara model, a new program is
being developed in Geraldton. It is anticipated that the Geraldton program will
service much larger numbers of Indigenous young people at risk given the
demographics of the area. The service is being developed in consultation with
the Geraldton Community Reference Group which includes a range of Indigenous
community members and leaders.

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Formal Diversion and Court Contact

Many Indigenous young people miss out on the early intervention services and
positive school experiences which foster positive identity and provide
opportunities to a better life. If these services have failed, the next point of
intervention usually comes at formal diversion and court contact.

Supported by the research, those we consulted with found that Indigenous
young people mostly offending at an earlier age. Tirkandi Inaburra workers
reported that many of their clients may have been offending even before the age
of criminal responsibility, so by the time they reached 10 years of age police
already perceived them as ‘a menace and come down
hard’.[190] Cautions and
warnings all get used up much earlier and young people are referred to
diversionary options such as conferencing sooner than non- Aboriginal children,
if at all.

Dr Harry Blagg, of the Crime Research Centre in Western Australia was
critical of the impact that conferencing has had on Indigenous young people. He
believes that diversion is ‘still failing Aboriginal
kids’[191] and very little
improvement has been made over the past 15 years. As long as the police remain
the gatekeepers of this system and there is little transparency at the level of
discretionary decision making, this will remain the case. In fact, the diversion
of so many non-Aboriginal offenders through conferencing, leaving an over
represented group of Indigenous offenders behind, further stigmatises Indigenous
people and feeds into negative stereotypes of Indigenous people as

Within this dynamic, Indigenous young people with cognitive disabilities or
mental health issues are once again considered especially disadvantaged. Most
had very little confidence in police being able to pick up on these issues and
there seems to be little reported capacity to adapt the process to meet their
needs. This is disappointing because a conference run along a restorative
justice model has the potential to ‘make things right’ with the
offender, victim and community and develop a plan which can help the offender
find their place in the community.

Text Box 12
Promising Practice:
Awareness and Sensitivity in Youth Justice

A promising exception to this perception is a pilot program conducted by the
Youth Justice Conferencing division of the NSW Department of Juvenile Justice.
Conference convenors in the Fairfield area trialled a screening tool designed to
pick up on any cognitive disability issues of conference participants.

Developed in consultation with the Criminal Justice Support Network,
Department of Disability, Ageing and Home Care and other stakeholders, the
screening tool provided a straight forward checklist for convenors, aware that
many had no expertise in these issues. Convenors are not required to make an
assessment of the nature or extent of a person’s condition, but they are
required to try and make the conference equitable for everyone to maximise

Checklist for Additional Support Needs in Youth Justice

Indicators of intellectual disability, cognitive
disability or mental health issues:

  • More difficulty following and remembering instructions
  • More difficulty understanding explanations- but may cover up that they
    don’t understand - you need to continually check
  • More difficulty reading everyday language
  • More limited writing skills
  • More difficulty concentrating for the time you’d expect, easily
  • Difficulty understanding questions
  • Many be slow to respond to questions or try and avoid them
  • More than usual difficulty communicating ideas
  • Difficulty with abstract concepts like time and dates, their thinking may
    be more concrete
  • More likely to look at the whole ‘big picture’ and find it
    difficult to focus on a specific issue
  • More difficulty weighing up options and being able to think or plan
  • May have inflexible thinking - getting stuck on a particular idea and be
  • More difficultly remembering information
  • May display inappropriate social behaviour, like not observing personal
  • Person’s body language and expression many not match their
  • Compulsive of repetitive in their actions eg. Rituals in certain tasks,
    ie. Hand washing, lining up objects, or there could be something more obvious
    like pulling their hair, rubbing arm for no reason etc.
  • Avoiding eye contact. This needs to be in the context of their cultural
    background as some cultures consider it rude to make direct eye contact. So it
    needs to be considered in the context of their general appearance, ie. Slouched
    shoulders, body withdrawn, and presentation of voice, tone, etc, while making
    note of any cultural differences that are the norms for that culture
  • The person may seem to be responding to stimuli not present in the room.
    This could be noted by being distracted, difficulty following conversations,
    talking to someone not present etc
  • In the course of the conference preparation, you may discover that there
    have been changes in the person’s mood, or behaviours, sleep or eating
    patterns for no apparent reason that makes sense.

training and tips for working with people with cognitive disabilities was also
provided to ensure that conference convenors could then make necessary
adaptations to the process. If any participants were identified as having
issues, convenors could then try and accommodate their needs within the
conference process. Links were made with the Criminal Justice Support Network, a
specialist support agency for people with intellectual disability involved with
the criminal justice system, to provide additional assistance to convenors or
participants if appropriate.

The pilot received good feedback from convenors who appreciated the prompts
of the screening tool and education and support of disability support services.
According to Lynn Davie, Manager, Fairfield Youth Justice Conferencing, it also
increased their general effectiveness as it made them consider special needs and
contextual issues of all participants, whether they had a disability or not.

The pilot did not include many Indigenous young people, primarily due to the
geographic boundaries. However, Christine Sheeley, Youth Justice Conferencing
project manager, feels that it could be an equally successful tool to skill up
convenors dealing with Indigenous young people. The development group were also
conscious of problems with hearing that we know effect many Indigenous young
people. Training has been provided to conference convenors.

The pilot is now being evaluated but will be rolled out across the state and
it is hoped it will be especially useful in country areas of NSW where there are
larger numbers of Indigenous young people come into contact with Police. This is
an instance of a simple adaptation to practice that has the capacity to increase
service access for people with cognitive disabilities and/ or mental health

Our consultations found that the situation didn’t improve as the young
person moved to more formal proceedings. Aboriginal Legal Services felt that
legal staff often lacked the knowledge and resources appropriately deal with
Indigenous young people with cognitive disabilities or mental health issues. A
former NSW ALS solicitor reported:

everyone knows the factual things about Aboriginal people and mental health
and have statistics in their head, but some magistrates find it very difficult
to apply it in real life... I have seen otherwise very insightful magistrates
making some bad

Aboriginal Legal Services staff expressed a need for practically based
training aimed at magistrates and legal professionals to increase their
awareness of these issues, the prevalence of mental health and cognitive
disabilities and a basic understanding of some of the signs. Of course, this is
no replacement for proper assessment but it helps build recognition of the

We heard that Indigenous young people seem to be missing out on diversion
from the juvenile justice system under mental health provisions. For instance,
in NSW there is a provision for diversion under the Mental Health (Criminal
Procedure) Act.
Section 32 of the Act applies if:

it appears to the Magistrate that the defendant is (or was at the time of the
alleged commission of the offence):

  1. developmentally disabled; or
  2. suffering from a mental illness; or
  3. suffering from a mental condition for which treatment is available in a
    but who is not a mentally ill person within the Mental
    Health Act.[193]

If this applies, the Magistrate can divert the offender by dismissing the
charge and discharging the person:

  1. into the care of a responsible person, unconditionally or subject to
  2. on the condition that the defendant attend a certain place for
    assessment and/ or treatment; or
  3. unconditionally.[194]

This should be a good way of dealing with Indigenous young people
with cognitive disabilities and/ or mental health issues as it has the capacity
to order treatment but doesn’t necessarily involve the young person in the
juvenile justice system.

Anecdotally, this is being under utilised for Indigenous young people.
Firstly, because of the appalling gaps in service there is no confidence among
magistrates that the person will actually receive treatment. Secondly, the
reports required can be up to $600 and therefore beyond the budget of stretched
Aboriginal legal services unless the young person is facing custody. Finally,
many of the young people with these complex issues are likely to breach bail in
the time that it takes to prepare the report due to inadequate support. In a
way, going through this process can be setting them up to fail.

Text Box 13
Promising Practice:
Justice Health Court Liaison Scheme

The large number of young people with mental health issues in the juvenile
justice system has prompted the development of a Court Liaison Scheme in NSW. It
is run by NSW Justice Health, the government agency responsible for the health
care provision to adult prisoners and juvenile detainees.

The Court Liaison Scheme commenced in January 2006 and was initially based at
Cobham Children’s Court in Western Sydney. This site was originally chosen
as it takes in most of Western Sydney. It includes Blacktown Local Government
Area, the highest Indigenous population in the state.

The program is essentially an assessment and referral service for young
people before the court that may have mental health issues. Very few young
people present with confirmed diagnoses, instead there is often a general sense
from workers and legal practitioners that something is ‘not quite
right’ and then referred to the on site Justice Health mental health

The Justice Health worker then prepares a detailed assessment with the young
person. If a young person has a mental health issue the worker will present a
treatment plan to the court. An integral part of the assessment is checking if
the young person is known to any other mental health services to ensure
collaboration and consistency. However, it is estimated that about half of the
young people have no support in place, especially as any mental health issues
are only starting to emerge.

The treatment plan includes both community and custodial options, as it is
not the place for workers to tell the Courts what to impose. Nonetheless,
according to workers, most of the time the community based treatment
recommendations are followed. In terms of diversion, charges can either be
dismissed with recommendations for the treatment plan to be followed, or can be
imposed through a supervised bail arrangement. For many magistrates, the
advantage of a supervised bail arrangement is that some support is provided by
juvenile justice to ensure the treatment plan is met. The deferral of sentence
also provides a good incentive for the young person to make changes to avoid
further consequences.

It is not specifically within Justice Health’s mandate to work with
young people with a cognitive disability. This responsibility lies with the
Department of Disability, Ageing and Home Care (DADHC). Staff note that some of
their young people do present with borderline intellectual disability issues and
Aspergers syndrome. The capacity to conduct assessments about risk to the
community may pick up on some of the risk behaviours of these young people.
Recommendations can still be made but it is the responsibility of DADHC to
follow up on these.

In addition to the Court Liaison Scheme, Justice Health also run community
clinics that provide very detailed assessment, recommendations and consultancy
to young people involved with the Department of Juvenile Justice and the
Department of Community Services.

At October 2006, over 60% of the young people that went through the Court
Liaison Scheme and Community Clinics identified as Indigenous. There have been
conscious attempts to engage Indigenous communities. When the program was set
up, workers consulted with the community and involved local Elders in the
program. Workers explained what the program was about and then sought feedback
and guidance on how they should work with Indigenous young people. There is a
commitment to involve families wherever possible and strong links have been made
with local Aboriginal Medical Services and the Aboriginal Legal Services.

Justice Health is recruiting an Aboriginal identified mental health trainee.
The traineeship will include support to complete a health worker course through
Charles Sturt University. It is planned that the identified Aboriginal trainee
position will work with young people as well as having the capacity to engage
with the community and build the organisational capacity to address Indigenous

The Court Liaison Scheme has since expanded to Parramatta Children’s
Court. Given the good results so far, there are also plans to extend the service
to other metropolitan court locations.

Since the 1990s there have been a
range of alternative court models and processes. Notably, these have included
Indigenous courts and mental impairment/ intellectual disability courts. By and
large, those we consulted with were positive about the developments. There was a
sense that traditional courts may misinterpret the behaviours of Indigenous
young people with cognitive disabilities or mental health issues, often
attributing non-compliance and particular presentations to cultural reasons.
Juvenile justice practitioners saw the greater likelihood of these courts to
notice and intervene in cognitive disability or mental health issues, as they
had greater cultural understanding and awareness of ‘where the kids are
coming from’.[195]

The process of sitting around a table and discussing the offence and options
is also more likely to achieve engagement with Indigenous young people with
cognitive disabilities according to juvenile justice workers. Unlike other court
proceedings, the less formal nature means that there are opportunities to check
whether the young person actually understands what is going on and subsequently
any outcomes or orders which they need to abide by. The role of Elders and
recognition of culture is also important in achieving accountability and
demonstrating that offending is not acceptable to the Indigenous community
either. For young people with cognitive disabilities this concrete display had
the potential to really sink in.

Text Box 14
Promising Practice:
Intellectual Disability/ Mental Impairment Court
Based Diversions

In an acknowledgment of the large number of people with intellectual
disabilities and cognitive disabilities in the justice system court based
diversion programs have been developed in some jurisdictions (Western Australia,
South Australia and Queensland). At this stage only adult offenders are eligible
but it may be an option worth considering for young people as well.

In Western Australia, the Intellectual Disability Diversion Program (IDDP) is
characteristic of these programs. According to Amanda Perlinski, Program
Coordinator, IDDP has had success in working with Indigenous offenders. The
program was developed in 2002 and is now a permanent program funded by the
Department of Corrective Services.

The IDDP works along a therapeutic jurisprudence model. Magistrates,
prosecutors and lawyers work to case manage an offender and solve problems that
impact on offending. It is about diversion into treatment rather than
traditional criminal justice options.

The IDDP, based at Perth Magistrates Court, receives referrals from lawyers,
family members, carers, health professionals, police, court staff and community
corrections officers. When a person is accepted, a detailed case plan is
developed which links them in with service providers. Many have not received
service in the past. The person is regularly reviewed at court to make sure they
are complying with their plan and continuing to meet with service providers.
Reports are provided by the IDDP coordinator.

Ms Perlinksi describes the participants on the IDDP as a ‘very
challenging group of clients who frequently fall between the
gaps’[196] of available
services. For many, particularly Indigenous participants, this may be the first
time any cognitive disability is ever identified. A typical example for Ms
Perlinksi is an Indigenous young adult who has recently joined the program.
Despite having been in juvenile custody for extended periods of time, no one
managed to pick up on his very obvious cognitive disability. In fact, it was
only by chance that Ms Perlinksi overheard a conversation between a legal aid
solicitor and the person, and offered assistance, that he was even identified at
this point.

This lack of appropriate identification and service for Indigenous people is
not unusual. In Ms Perlinksi’s opinion it filters back to juvenile justice
and education systems who don’t value Indigenous young people. Often:

nobody bothers with the Aboriginal kids sitting up the back of
the class because there is an attitude that they don’t do well and will
just leave anyway.[197]

From the example mentioned, this young adult was in considerable need when we
started on the program. He had little family support and was desperately needing
accommodation. The IDDP was able to find him temporary accommodation and get him
basics like bank accounts and Centrelink payments. These things are a concrete
start but there is a lot more to be done to prevent reoffending.

There are some concerns that programs like the IDDP can have a net widening
effect and draw people into the criminal justice system when they should be
treated in the community. However, practically they do seem to offer
alternatives to a group of people who have few options. Given the extreme
likelihood of Indigenous people becoming caught up in the criminal justice
system, it seems better that there is another point of diversion.

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with Juvenile Justice

By the time Indigenous young people with cognitive disabilities or mental
health problems actually come in contact with the juvenile justice, they have
usually suffered a range of systemic failures. Instead of using opportunities to
intervene, many young people have fallen into the ‘too hard basket’
that leads to custody. However, there is a strong commitment not to give up on
these young people. Just because they have progressed through to the extreme end
of the juvenile justice system, there are still opportunities for positive

Consistent with the statistics, we heard that Indigenous young people are
more likely to be entering custody, either on remand or a custodial sentence. We
heard many stories about institutionalisation and the desperate circumstances
where some Indigenous young people even committed offences with the express aim
of going into custody as it was preferable to their lives on the outside.

Young people with cognitive disabilities may also be more prone to
institutionalisation. Practitioners working with Indigenous people with
disabilities found that some young people were actually more functional when
they were in custody. This was because they responded to the structure, routine
and certainty of custody, compared with their chaotic lives on the
outside.[198] This is not a
justification for custody but it does show that strategies and structure can
work to support young people in the community.

Conversely, Indigenous young people with mental health problems often
deteriorated in custody and in fact, some mental health issues were context
dependant, according to Professor Milroy. We heard that mental health needs in
custody were not always met, with few forensic services for juveniles across the

There was a call for greater screening of cognitive disabilities and/ or
mental health issues by the juvenile justice system, although there was some
concern raised about the specific disability and mental health knowledge of
juvenile justice workers. Nonetheless, it makes sense that these issues be
seriously considered as they have the likelihood to impact on what sort of case
plan is developed and how it is implemented. Once again, there was a call for
more culturally appropriate services as a base of any assessment or intervention
for Indigenous young people with cognitive disabilities or mental health issues.

Text Box 15
Promising Practice:
Koori Juvenile Justice Program

The Koori Juvenile Justice Program was established in Victoria in 1992 in
response to the findings of the Royal Commission into Aboriginal Deaths in
Custody. Since then the Koori Juvenile Justice Program has evolved as a more
comprehensive way of working with Koori young people and is an integral part of
the Victorian Aboriginal Justice Agreement.

The Koori Juvenile Justice Program is a self managed model, with funding
provided to local Aboriginal Co-operatives that have responsibility for the
employment, supervision and support of the Koori Juvenile Justice Program
workers. This model has been instrumental in shaping the program. Overall the
Aboriginal cooperatives seem to be well established in local communities and
with broad knowledge and resources to assist young people.

The separation of the Koori Juvenile Justice Program workers from the
juvenile justice workers is also seen as a good thing by workers according to
workers at the Bert William Centre, (VACSAL) as it helps build rapport with
young people and build trusting relationships.

The Koori Juvenile Justice Program now covers most of Victoria. Workers are
available at all stages of contact with the juvenile justice system, as well as
some capacity to provide diversionary options. All workers are Indigenous.

There are 16 Koori Juvenile Justice Worker positions based in the community
across Victoria. They provide diversionary and rehabilitative services for
Indigenous young people on juvenile justice orders or who are at risk of
entering/ re-entering the juvenile justice system. Their role includes:

Diversionary strategies-

  • Developing and initiating culturally appropriate programs and
  • Providing support for Aboriginal young people and their families at court
    and to advocate on their behalf;
  • Providing secondary consultation to juvenile justice case managers to ensure
    the culturally appropriate information is provided to courts;
  • Providing advice to court as required;
  • Supporting or gaining support for Aboriginal young people detained by police
    and offer advice to police to ensure fair and reasonable outcomes for Aboriginal
    young people as required.

Working with Statutory Clients-

  • Attending client case planning and case management meetings;
  • Developing and reviewing Aboriginal Cultural Support Plans;
  • Providing cultural supervision, programs and support for Aboriginal people
    on court orders;
  • Providing secondary consultation to case managers of Aboriginal young people
    to ensure culturally relevant client assessment plans are implemented; and
  • Visiting Aboriginal young people in custody to ensure linkages with their
    Aboriginal community are established/

Koori Juvenile Justice Program workers are based in each of the
juvenile custodial facilities. Their role is to ensure Indigenous young people
maintain (or reconnect) with community and families whilst incarcerated. As well
as providing the same sort of general culturally appropriate support as
community based workers, they also:

  • assist Indigenous young people on remand access diversionary program;
  • initiate contact with community based Koori Justice Program workers;
  • develop networks to ensure Indigenous young people have access to culturally
    appropriate services, especially when they are leaving

A recent addition to the way juvenile justice services in Victoria
works with Indigenous young people is through Aboriginal Cultural Support Plans.
Aboriginal Cultural Support Plans are provide for each young person. With the
young person, juvenile justice worker and family, information is gathered about
the young person.

This includes:

  • the Aboriginal community group that the young person identifies with;
  • tribal/ family origin group;
  • identification of contacts to support cultural links;
  • a contact plan for Aboriginal services;
  • ways to maintain ongoing cultural links for a young person’s
    community; and
  • significant family

The rationale for Aboriginal Cultural Support Plans is to
systematically ensure that all Indigenous young people have access to the Koori
Juvenile Justice Program. More broadly it is prefaced on the need to build pride
in Indigenous identity and connection to community.

On the ground, workers from the Bert Williams Centre value the new Aboriginal
Cultural Support Plans. Although it is ‘nothing
new’[202] in terms of how
they work with young people, it has created some safeguards in the system. It is
strengthens their ability to increase young people’s ‘sense of
belonging’[203] especially
when young people have come from fractured communities. Some young people
haven’t had the opportunity to learn about their culture. This can be a
good chance to gain these experiences if they are ready and willing.

Phase 2 of the Victorian Aboriginal Justice Agreement has enhanced the Koori
Juvenile Justice Program.[204] There is now provision for a Koori Preventative Early School Leaver and Youth
Employment Program. Based on an outreach model, it will provide intensive
support to assist Koori young people involved/ or at risk of involvement with
the juvenile justice system to remain at school, look at alternative education
and employment options. To increase the number of Indigenous young people who
are granted bail, a Koori Youth Intensive Bail Support Program has also
commenced to provide support to meet bail conditions and improve chances for
diversion from custody.

The fact that the Koori Juvenile Justice Program operates across the
offending continuum, from ‘at risk’ clients all the way through to
young people in custody is also a strength of the model. It provides multiple
opportunities for engagement and can create lasting connections with young
people. According to workers at the Bert Williams Centre, their door is always
open to young people. They recognise that sometimes they may be sowing the seeds
to change later. This helps develop a context where young people can really feel
valued and accepted.

While the Koori Juvenile Justice Program doesn’t specifically target
Indigenous young people with cognitive disabilities or mental health issues,
unlike mainstream juvenile justice programs it does build on a strong cultural
base. Further, there seems to be a growing awareness of the specificity of
cognitive disabilities and mental health needs in Victorian juvenile justice.
These are noted in the Victorian Offender Needs Indicator for Youth (Victoria is
the only state to systematically identify cognitive/ mental health status of
young people in juvenile justice).

Together, these factors seem to have created an environment where staff are
able to work well with Indigenous young people with cognitive disabilities or
mental health issues. Workers at the Bert Williams Centre relayed one typical
case where they were able to make a difference with a young person with a
cognitive disability. The young person came from a background of family
violence, had been taken into care, was homeless and could not read or write
when he ended up in juvenile justice system. He has now achieved his forklift
license, is working and has his own home and family. For this young person, the
key was building his identity, self esteem and ‘telling him, you are
strong’[205] coupled with
stability and showing care. This helped him maximise his potential and shift
away from offending.

Of course, not all stories have such a happy ending but it does reaffirm that
with the right support some of the ‘hardest kids’ make it through
the system to positive ends.


Text Box 16
Promising Practice:
Intensive Supervision Program

The Intensive Supervision Program (ISP) run by Department of Corrective
Services in Western Australia is a multi systemic therapy (MST) program for
young people who commit serious and/ or repeat offences or whose severe anti
social behaviour places them on a trajectory towards serious offending. The
first ISP teams commenced in 2005 in Perth. Since then over half of the
referrals have been for Indigenous young people.

MST is an empirically based international model which tries to prevent
offending by looking at the range of systems which impact on the young person.
These systems include family, peers, school, local community and support
services. MST comes from a strengths based perspective but uses specific
psychological and family therapies.

MST has been extensively evaluated overseas and there is evidence to suggest
that it significantly reduces recidivism amongst participants. An interim
evaluation of the ISP shows of 43 cases that have been out of the program for at
least six months, the reduction in total days in custody was 32% and the
reduction in the number of convicted offences was
73%.[206] This is a very small
sample but promising nonetheless.

According to Phillip Narkle, Aboriginal Team Advisor, work has been done to
make sure the MST was adapted to meet the needs of Indigenous families. The
response of the Aboriginal community was initially very suspicious. However, Mr
Narkle believes that there have now been enough positive results and adaptations
to gain some community support.

The position of Aboriginal Team Advisor (ATA) was added to the original team
of clinicians (social workers or psychologists). The ATA:

  • is responsible for team cultural sensitivity and learning;
  • meets with Indigenous families and gives an overview of ISP;
  • introduces and vouches for clinicians to gain greater acceptance and trust
    with family and young person;
  • works together with the clinician to help engage the family in the early
  • is continually consulted by the team to ensure cultural appropriateness of
    assessments and interventions and
  • conducts community development and linkages.

Although the ISP is multi systemic in intent, the majority of the
work is done with the young person and their family in their own home. There is
a strong parenting component. The program aims to provide parents with the
skills to deal with their children’s behaviour and prevent offending.

ISP is a very intensive program with clinicians and families meeting three to
five times a week and workers are available on call for any crisis situations.
Due to the intensity, the program lasts between 3 to 6 months, depending on the
progress and needs of the particular family. According to Mairead McCoy,
Manager, ISP, the research shows that after 4-6 months there are
returns’[207] on

It is not clear whether this is also the case for Indigenous young people
with very complex needs against an intergenerational background of disadvantage.
There was some scepticism about this approach amongst the other practitioners we
consulted, although it is too early to make any firm findings.

ISP is a purely voluntary program. Mr Narkle believes that this is part of
the reason for its success with Indigenous families as they are ‘sick of
being driven into
programs.’[208] This means
that the Courts cannot make a young person participate in ISP. There have been
attempts to make this happen but is has been resisted as it could change the
dynamics of the program. Another reason for keeping the program voluntary is
that a lot of the work is actually done with the parents and families. It is not
the parents that have committed the offence and therefore it is not fair to
impose a program condition on them.

The fact that parents and families set the goals means that a lot of the work
is around helping people access services and sort out the necessities of
everyday life. Ms McCoy states that few of their clients are connected to
universal services, so there is a lot of practical work around housing, health
and income support.

The strengths based approach was also considered integral in engaging
Indigenous families. Mr Narkle explains that most of the families have had
extensive involvement with child protection services and other institutions that
have reinforced low self worth and blame. Instead, they work from the
perspective that ‘families are doing the best they
can’[209] and build on
resilience and strengths that they may not have even acknowledged themselves.

Through the ATA, ISP has the capacity to work with some broader community
issues which impact on the offending behaviour of individual Indigenous young
people. For instance, feuding between different groups with the Indigenous
community was identified as a problem for a number of young people on the
program. A lot their offences were assaults related feuding or carrying weapons
for protection. One young person carried a machete with him at all times to
protect himself based on quite real fears that he was at risk of serious harm
from others. Obviously carrying a weapon was in breach of his order and could
have led to an escalation of conflict and serious assault charges. In order to
try and diffuse the situation, Mr Narkle worked closely with Aboriginal Elders
and Police in the community to reduce family feuding and violence at a systemic
level, to communicate that feuding is fighting, not

ISP does not specifically target Indigenous young people with cognitive
disabilities or mental health issues although they have worked with quite a lot
of young people with these issues. In particular, they estimate a large
proportion have had mental health issues, brought on by high levels of trauma
and resulting in suicidal ideation and suicide attempts. Mr Narkle believes that
the effects of the Stolen Generation as well as abuse and neglect in their own
lives perpetuates profound trans-generational trauma for Indigenous young

ISP staff believe that the program is flexible enough to work well with the
needs of these young people and have had success in assisting families develop
more confidence and awareness about cognitive disability. At the same time, they
have also worked with the Disability Services Commission to teach them to be
more culturally appropriate through the expertise of the Aboriginal Team
Advisors. Cognitive disability is also a factor for families, with high levels
of deficit and disability amongst parents often due to substance use.

For instance, Mr Narkle and Ms Rochester recounted one case of an Indigenous
young man they worked with who presented with Tourettes Syndrome as well as
psychotic symptoms. Through the combined expertise of the Aboriginal Team
Advisor and clinician, the intervention was able to look at the cultural and
spiritual reasons for the episodes leading to a traditional spiritual cleansing
process, as well as the medical and neurological reasons. This approach
recognised the:

fine line between looking at cultural reasons and making sure an
organic mental condition is diagnosed and

Mr Narkle comments, ‘it’s not rocket science, it’s just
sitting down and looking at the problem and thinking of some
solutions.’[212] However, it
seems that enough consideration and hard work has taken place to bring some good
results to Indigenous young people.

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[157] A list of consultations
can be found at Appendix
[158] Milroy, H.,
Communication with the Social Justice Commissioner’s Office, 22 March
[159] Stopher, K.,
Communication with the Social Justice Commissioner’s Office, 19 March
[160] Stopher, K.,
Communication with the Social Justice Commissioner’s Office, 19 March
[161] Raphael, B., Swan,
P. and Martnek, N., “Trauma for Australian Aboriginal People”, in
Danieli (ed), International Handbook of Multigenerational Legacies of Trauma, Plennum Press,1998,
[162] Griffis, D.,
Communication with the Social Justice Commissioner’s Office, 27 April
[163] Brown, S.,
Communication with the Social Justice Commissioner’s Office, 1 March
[164] Gornall, D.,
Communication with the Social Justice Commissioner’s Office, 19 March
[165] Narkle, P.,
Communication with the Social Justice Commissioner’s Office, 20 March
[166] Milroy, H.,
Communication with the Social Justice Commissioner’s Office, 22 March
[167] Royal Australian
College of Physicans, Health of Children in Out of Home Care, RACP,
Sydney, 2006, available at
[168] Royal Australian College of Physicans, Health of Children in Out of Home
RACP, Sydney, 2006, available at
[169] Royal Australian College of Physicans, Health of Children in Out of Home
RACP, Sydney, 2006, available at
[170] Royal Children’s Hospital, Australian Early Development Index: Building
better communities for children
, 5 March 2008, available online at:,
accessed 25 March 2008.
[171] Sarra, C.,
Communication with the Social Justice Commissioner’s Office, 16 April
[172] Sarra, C.,
Communication with the Social Justice Commissioner’s Office, 16 April
[173] Sarra, C.,
Communication with the Social Justice Commissioner’s Office, 16 April
[174] Gould, J.,
Communication with the Social Justice Commissioner’s Office, 18 April
[175] Gould, J.,
Communication with the Social Justice Commissioner’s Office, 18 April
[176] Gould, J.,
Communication with the Social Justice Commissioner’s Office, 18 April
[177] Sarra, C.,
Communication with the Social Justice Commissioner’s Office, 16 April
[178] Gould, J.,
Communication with the Social Justice Commissioner’s Office, 18 April
[179] Sarra, C.,
Communication with the Social Justice Commissioner’s Office, 16 April
[180] Sarra, C.,
‘Stronger Smarter School Outcomes through Aboriginal perceptions of being
Aboriginal’ (2006) 11 Griffith

[181] Sarra, C.,
‘Stronger Smarter School Outcomes through Aboriginal perceptions of being
Aboriginal’, (2006) 11 Griffith
[182] Sarra, C.,
‘Stronger Smarter School Outcomes through Aboriginal perceptions of being
Aboriginal’ (2006) 11 Griffith Review,
[183] Sarra, C.,
‘Stronger Smarter School Outcomes through Aboriginal perceptions of being
Aboriginal (2006) 11 Griffith

[184] Sarra, C.,
‘Stronger Smarter School Outcomes through Aboriginal perceptions of being
Aboriginal’ (2006) 11 Griffith

[185] Sarra, C.,
Communication with the Social Justice Commissioner’s Office, 16 April
[186] Bamblett, L.,
Communication with the Social Justice Commissioner’s Office, 30 March
[187] Bamblett, L.,
Communication with the Social Justice Commissioner’s Office, 30 March
[188] Corning, L.,
Communication with the Social Justice Commissioner’s Office, 30 March
[189] Cunneen, C.,
Communication with the Social Justice Commissioner’s Office, 19 April
[190] Seymour, M.,
Communication with the Social Justice Commissioner’s Office, 3 April
[191] Blagg, H.,
Communication with the Social Justice Commissioner’s Office, 22 April
[192] Rothman, C.,
Communication with the Social Justice Commissioner’s Office, 2 March
[193]Mental Health
(Criminal Procedure) Act 1990
[194]Mental Health
(Criminal Procedure) Act 1990
[195] Bamblett, A.,
Communication with the Social Justice Commissioner’s Office, 30 April
[196] Perlinski, A.,
Communication with the Social Justice Commissioner’s Office, 20 March
[197] Perlinski, A.,
Communication with the Social Justice Commissioner’s Office, 20 March
[198] Fishburn, K.,
Communication with the Social Justice Commissioner’s Office, 7 March
[199] Report provided to
author on 29 April 2007.
[200] Report provided to author on 29 April
[201] Report provided to
the Social Justice Commissioner’s Office on 29 April
[202] Bamblett, L.,
Communication with the Social Justice Commissioner’s Office, 30 April
[203] Bamblett, L.,
Communication with the Social Justice Commissioner’s Office, 30 April
[204] Victorian
Department of Justice, Victorian Aboriginal Justice Agreement Phase 2, Melbourne, June 2006.
[205] Bamblett, L., Communication with the Social Justice Commissioner’s Office,
30 April 2007.
[206] Department
of Corrective Services, Interim Intensive Supervision Program Evaluation
November 2006, provided to the
[207] McCoy, M.,
Communication with the Social Justice Commissioner’s Office, 20 April
[208] Narkle, P.,
Communication with the Social Justice Commissioner’s Office, 20 April
[209] Rochester, T.,
Communication with the Social Justice Commissioner’s Office, 20 April
[210] Narkle, P.,
Communication with the Social Justice Commissioner’s Office, 20 April
[211] Rochester, T.,
Communication with the Social Justice Commissioner’s Office, 20 March
[212] Narkle, P.,
Communication with the Social Justice Commissioner’s Office, 20 March