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Steels, Brian; Goulding, Dot --- "When it's a Question of Social Health and Well - Being, The Answer is Not Prison" [2009] IndigLawB 21; (2009) 7(12) Indigenous Law Bulletin 15

When it’s a Question of Social Health and Well-Being, The Answer is Not Prison

By Brian Steels and Dot Goulding.

Systemic damage has been done to aboriginal communities throughout the world ever since the invasion of indigenous lands by settler populations, not just by the taking of their lands, but by destroying existing culture and heritage, forms of governance and regulation and by removing self-determination over their lives. Today, governments and people have the opportunity to address the underlying intergenerational problems that have been a characteristic of past policies and practices. Sadly for many indigenous peoples, progress towards greater independence is held up by intransience on the part of many governments who are slow to provide reparation for past polices and actions, or to place greater value on cultural heritage.

In Western Australia, Aboriginal, marginalised and socially excluded people find themselves the main focus of the criminal justice system. This is, in part, due to a policy of being ‘tough on crime’. But it is also due to the enormous gap referred to by Casey in the Review of the Department of Indigenous Affairs. Casey reports that,

Despite 100 years of dedicated Aboriginal affairs agencies, radical shifts in public policy, the continuous review of administrative arrangements by state and federal governments, legislative reform, thousands of recommendations arising from royal commissions and other inquiries, and a surfeit of research findings, the discrepancy between the social and economic well-being of Indigenous and non-Indigenous people could be described as a vast gulf, rather than a ‘gap’.^[1]

The results of these policies include resolving the challenging issues surrounding crime within Aboriginal communities by building more prisons, all too often ‘off country’ and far away from relatives. This has become the quick-fix and cheap solution. With over 42% of the adult prisoner population being Aboriginal (the current juvenile rate is 72%), the seriousness of the situation can hardly be overstated, especially given that Aboriginal people account for less than 4% of the State’s population.^[2] According to the Australian Bureau of Statistics, Indigenous people are ‘20 times more likely to be in prison than non-Indigenous persons in Western Australia; the highest ratio of Indigenous to non-Indigenous age standardised rates of imprisonment in Australia’.^[3]

With these figures in mind, former Governor, Lt. John Sanderson once spoke of the dire circumstances for young children living in Aboriginal communities, commenting that ‘in many senses this is not really a characteristic of Aboriginal communities, it is … a characteristic of dysfunctional communities’. Failing to add that Aboriginal communities were not dysfunctional prior to settlement, Lt Sanderson missed an opportunity to make the connection between the forced removal from lands and culture, the removal of children from families and high incidences of crime. It is this point that the authors wish to address: by highlighting dysfunction, there is considerable ‘whitewashing’ of past policies that have brought about chronic social and economic disadvantage, that are the known foundations of anti-social behaviours and crime.

Rather than locating anti-social behavior within the context of criminal justice system, we argue that Government needs to adapt policies and programs to better address the root causes of such conduct, especially the exclusion and marginalisation of so many individuals, families and communities. Rather than resorting to traditional punitive measures, Aboriginal communities ought to be supported through locally developed programs targeted at individual, familial and community healing, with a reversal of the paternalistic policies that deny self-determination, reduce self respect and devalue positive reflections on a rich and diverse cultural heritage.

Family Violence as a Health Issue

Much has been written about the need to address family violence and abuse among Indigenous communities, using more effective and long-lasting measures that find their solutions within local communities, with a focus on counseling, support and collective healing.^[4] Previous approaches emphasised ‘law and order’, delivered externally by police and regulatory bodies such as ‘child protection’. In this model, health and criminal justice outcomes were not seen as having common ground.

Among the more recent advocates for addressing family violence through holistic healing, the National Aboriginal Community Controlled Health Organisation (‘NACCHO’) suggested^[5] that government policies adopt ‘a holistic response with a health focus on healing and empowerment’.^[6] The change from solely punitive responses towards healing and empowering highlights social exclusion and marginalisation as major defining factors of community dysfunction. These contribute not only to poor community health outcomes, but also to higher rates of involvement with the criminal justice system. The impact of trauma and anxiety-related factors found among many Indigenous communities can be debilitating in the extreme. Halloran maintains that,

regardless of the criteria used to measure them, anxiety related cognitions and behaviour are prevalent amongst the Indigenous people of Australia, and have been likened to the symptomatology of Post-Traumatic Stress Syndrome.^[7]

Post Traumatic Stress Syndrome (‘PTSS’)^[8] is a disorder that is triggered by an event that threatens one’s personal safety or makes one feel helpless. For most people the symptoms are short-lived. Symptoms that continue often include flashbacks of the experience, a sense of numbness and detachment from others, often leading to drug abuse, alcoholism, anger, violence, guilt and shame. When so many people in one family or community have experienced many of the symptoms, compounded over a period since their own childhood, including severe and frequent loss, separation, abuse, violence, helplessness and continual anxiety, they are more likely to pass on the disorder to the following generation.

Significant personal damage can remain untreated where it is transmitted from one generation to the next. Indeed, without local families and communities being supported to break the cycle of intergenerational trauma and violence in what Atkinson and Atkinson describe as ‘family fighting’,^[9] continual and intergenerational victimisation will reoccur. Whatever words we use to describe the situation in many Aboriginal communities, the findings of the Coronial Inquest into 22 Indigenous deaths in the Kimberley provide little comfort for future generations. Painting a disturbing picture, the Coroner reported that:

It was clear that the living conditions for many Aboriginal people in the Kimberley were appallingly bad. The plight of the little children was especially pathetic and for many of these the future appears bleak. Many already suffer from foetal alcohol syndrome and unless major changes occur most will fail to obtain a basic education, most will never be employed and, from a medical perspective, they are likely to suffer poorer health and die younger than other Western Australians.^[10]

Using the term ‘dysfunction’ tells us little about the way in which to break the cycle from one generation to the next, and how, unless treated, ‘dysfunction’ will continue to thrive within communities. The incarceration rate of Indigenous young people and adults in WA^[11] tells us that the current criminal justice system is not coping well with the aftermath of family fighting, feuds and other crime, let alone with the dysfunction, trauma and poor social-emotional wellbeing prevalent in many communities.

Grief and Trauma – The Long-Term Impacts of Forced Removals

The Bringing Them Home Report clearly outlines problems of unresolved grief and trauma resulting from policies of forced removal of children from their homes. These feelings often lead to self-harm, domestic violence, alcoholism and suicide. This sense of community destabilisation continues in contemporary life because of the poor circumstances within contemporary Aboriginal societies.^[12] This situation is exacerbated by the widespread removal of masculine influence,^[13] that is, ‘male role models were either absent or had been undermined.’^[14] Compounding this problem is the fact that significant numbers of men are currently being housed in far away prisons. With many male role models separated from families and communities by the criminal justice system, today’s children are fast becoming the next generation of prisoners. This physical divide significantly undermines the ability of many communities to provide their children with a good sense of self; indeed,

The removal of Indigenous children continues today. Indigenous children are six times more likely to be removed for child welfare reasons and 21 more times likely for juvenile detention reasons than non-Indigenous children’.^[15]

The link between poor social and emotional wellbeing of Indigenous men and women as a result of intergenerational, compounded trauma – both individually and collectively – and over-representation in the criminal justice system may not be clear at first to those people who have not lived or worked among Indigenous communities. But working with members of the Stolen Generations, their families and communities, one can quickly see the consequences of forced removals upon those struggling to come to terms with catastrophic loss. One can also observe the free flowing trauma between generations. For many Indigenous people, the loss of land, cultural heritage, language, family members, and power over their own lives, has lead to situations of great stress and poor mental health. For others, this is manifested through alcoholism and violence, both of which are encountered on a regular basis. It is largely these last two that underpin anti-social and criminal acts.

For people who are socially and emotional damaged from loss and trauma, finding culturally appropriate help is complicated by regulations that tend to punish rather than heal. This can be particularly challenging in situations where the impact of intergenerational violence and abuse may not be given the same degree of concern as law-breaking.

Looking at Some Alternative Approaches

Underlying assumptions about providing services remain within the region and there is tension between Aboriginal and Non-Aboriginal styles of intervention. Non-Aboriginal policy makers and service operators often claim to be acting in the interests of Aboriginal communities, but fail to carry out meaningful consultation with the people they purport to be assisting. The NACCHO Position Paper indicates that there is a general reluctance by Aboriginal people to engage with the justice system; this is partly because forced separation via prisons and detention centres intensifies deep pain, adding to grief caused by colonisation and past policies. In turn, this creates a more marginalised and destabilised young Aboriginal population. It also adds to the burdens – both financial and social – on individual community members. This is particularly so for women and children who have extra court sessions to attend to provide support, as well as phone and travel expenses to maintain contact with relatives often incarcerated far from home.

Our preference is for local treatment programs that are effective and sustainable. For instance, when a person is brought to the attention of local police or the courts, the first response should be to keep the victim safe and away from further harm while the offender and his or her support network re-examine past and current lifestyles. Ideally, such programs should be carried out in a facilitated environment that is responsive to the treatment of trauma. This would preferably be driven by locally trained and supported facilitators who live locally and are respected and trusted by the vast majority of the community. A strong advocate of self-determination and empowerment, the WA Law Reform Commission has sought^[16] greater ownership of services and programs. Specifically, it seeks that

1. The Department of the Attorney General and the Department of Corrective Services immediately review the existing programs and services available for Aboriginal people in the criminal justice system.

2. The WA Government provide resources to ensure that there are adequate and accessible culturally appropriate programs and services for Aboriginal people at all levels of the criminal justice system.

3. When allocating resources for the provision of programs and services for Aboriginal people, priority be given to establishing and supporting Aboriginal-owned programs and services.

4. Where it is not possible to establish an Aboriginal-owned program or service, the WA Government should ensure that Aboriginal people are involved in the design and delivery of government-owned programs and services.

5. The WA Government pay particular attention to ensuring that there are adequate and accessible culturally appropriate services for Aboriginal victims of family violence and sexual abuse.^[17]

We argue that, by dealing solely with obvious criminogenic factors, re-offending behaviours are less likely to be resolved. We note that prisons and detention centres are already among the most regularly used options for the rehabilitation of Indigenous people. Yet despite their institutional popularity, these mechanisms are generally unsuccessful in reducing the incidence of violent conduct in Indigenous communities. But the options are clear: on the one hand, we can continue simply dealing with each case of crime in isolation from families, victims and the many communities involved. Alternatively, we can do something to heal the impact of past and present trauma that is directly associated with anti-social and criminal behavior.

The current method of dealing with Indigenous offending is failing to halt victimisation, failing to rehabilitate, and appears to be failing to provide justice and fairness. Orthodox approaches to crime and violence make the assumption that offenders can be treated in isolation from relatives and community, often away from country and, in many cases, away from their primary language group. Such a disjointed approach reduces the likelihood that offenders will make the changes to make an effective transition to a healthy and full citizen.

The Role of Restorative Justice

One noteworthy response to crime and anti-social behavior for Indigenous communities is restorative justice. Empirical evidence suggests that restorative justice produces significant benefits for victims^[18] and reduces recidivism by offenders.^[19] One of the major factors producing this reduction in offending is a reduction in the use of neutralisation^[20] and an increase in support from the family to relatives who have offended.

Social supports have been consistently found to be a significant factor in reducing offending; at the same time, problematic families generally increase the risk of offending. But while offending behaviour causes fractures to the family unit, criminal justice processes do not help in this regard. Offering little assistance in family healing, the criminal justice system is unlikely to assist communities; more commonly, the process further damages already troubled families. In many cases, families reinforce anti-social sentiments by blaming the criminal justice system (and other social systems) for the criminal behaviour of their relative or loved one. This blaming, one of the forms of neutralisation identified, reduces the offender’s sense of responsibility and has been demonstrated to increase risk of reoffending.^[21]

On the other hand, there is evidence suggesting that interventions among families of juvenile offenders are effective in reducing criminal behaviour. Evidence from the British Home Office Report shows ‘33% less repeat offending among offenders coming out of prison after restorative justice than without it’.^[22] Central to a change from merely punitive to wholly restorative solutions, as Sir Charles Pollard explains, is strategy. That is, a system whereby

criminal justice is transformed from being an adversarial, process-based conveyor belt, focusing simplistically on closely defined offences, into a far more inclusive and fair method of conflict resolution that meets the needs of all those involved.^[2]

Conclusion

We believe that the time has come for the criminal justice system to embrace solutions that are more supportive of Indigenous communities, that are more effective in reducing the rates of offending and incarceration. Alternatives that heal and pave the way towards positive futures are, according to research, more likely to lower the alarming number of Aboriginal people who are currently in prison or juvenile detention.
Dr Brian Steels is a Research Fellow at the Centre for Social & Community Research, Murdoch University, Western Australia.

Dr Dot Goulding is Director of the Centre for Social & Community Research, Murdoch University.

^[1] Dawn Casey, Report on the Review of the Department of Indigenous Affairs (2007), 12.

^[2] WA Department of Corrective Services, Monthly Graphical Report: March (2009), available at <http://www.correctiveservices.wa.gov.au/_files/AG_Report_0903.pdf> .
^[3] See <www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4517.0Main%20Features22008?opendocument&tabname=Summary&prodno=4517.0&issue=2008&num=&view=>, at 18 March 2009.
^[4] Kyllie Cripps and Hannah McGlade ‘Indigenous Family Violence & Sexual Abuse: Considering pathways forward’ (2008) 14(2-3), Journal of Family Studies (2008); Zoe Morrison, Antonia Quadara and Cameron Boyd Morrison, ‘Ripple effects’ of Sexual Assault (2007); Sue Gordon, Kay Hallahan and Darrell Henry Putting the Picture Together: Inquiry into Response by Government Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities (2002); Blagg Aboriginal Youth and Restorative Justice: Critical Notes from the Australian Frontier (2000); Pat Swan and Beverley Raphael, Ways Forward: National Consultancy Report on Aboriginal and Torres Strait Islander Mental Health (1995).
^[5] National Aboriginal Community Controlled Health Organisation, Position Paper on Child Abuse and Family Violence (2006), 2.
^[6] Michael Halloran, Cultural Maintenance and trauma in Indigenous Australia. Paper, paper delivered at the 23^rd Annual Australia and New Zealand Law and History Society Conference, Perth, July 2004, 4.
^[7] Coralie Ober, Lorraine Peeters, Ron Archer and Kerrie Kelly ‘Debriefing in Different Cultural Frameworks: Responding to Acute Trauma in Australian Aboriginal Contexts’ in Beverley Raphael and John Preston Wilson (eds) Psychological Debriefing: Theory, Practice and Evidence (2000).
^[8] See <http://www.helpguide.org/mental/post_traumatic_stress_disorder_symptoms_treatment.htm> , at 20 March 2009.
^[9] Cited in Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report (2004), 11.
^[10] Alastair Hope, Coroner’s Court of WA: Kimberley Finding (2008), Executive Summary.
^[11] WA Department of Corrective Services, Facts and Figures, see <http://www.correctiveservices.wa.gov.au/F/factsandfigures.aspx?uid=4885-7358-0406-7818> .
^[12] Cited in Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From their Families (1997), 197.
^[13] Ernest Hunter, ‘Freedom’s Just Another Word: Aboriginal Youth and Mental Health’, (1995) 28 Australian and New Zealand Journal of Psychiatry, 374.
^[14] Ibid.
^[15] HREOC, above n 12.

^[16] Law Reform Commission of Western Australia, Aboriginal Customary Law Report, (2006), 86.
^[17] Ibid, recommendation 7.

^[18] Jamie Beven, Guy Hall, Irene Froyland, Brian Steels, and Dorothy Goulding, 'Restoration or Renovation? Evaluating Restorative Justice Outcomes in Psychiatry’ (2005) 12(1) Psychology and the Law; Lawrence Sherman and Heather Strang, Restorative Justice: The Evidence (2007); Heather Strang et al ‘Victim Evaluations of Face-to-Face Restorative Justice Conferences: A Quasi-Experimental Analysis’ (2006).
^[19] James Bonta, Rebecca Jesseman,Tanya Rugge and Robert Cormier, ‘Restorative Justice and Recidivism: Promises Made, Promises Kept?’ in Dennis Sullivan and Larry Tifft (eds) Handbook of Restorative Justice (2006).
^[20] Gresham Sykes and David Matza, Techniques of Neutralisation: A Theory of Delinquency( 1957).
^[21] Don Andrews and James Bonta, The Psychology of Criminal Conduct (3^rd ed, 2003).
^[22] See <www.restorativejustice.org.uk/Resources/pdf/Restorative%20Justice%202006.pdf>.
Ibid.