Imprisonment of Indigenous People with Cognitive Impairment: What Do Professional Stakeholders Think?

By Patrick Keyzer

Last Wednesday the Senate released Terms of Reference for an Inquiry into the Indefinite Detention of People with Cognitive Impairment or Psychiatric Illness in Australia.  The stories of Marlon Noble, Rosie Ann Fulton and many other indigenous and non-indigenous Australians who have languished in prisons for years because there are insufficient services in the community.  The hard work and lobbying of sector advocates such as Patrick McGee of La Trobe University and the Aboriginal Disability Justice Campaign, Damian Griffis from First Peoples Disability Network and Professor Eileen Baldry from the University of New South Wales, among others, has gotten through, and the Federal Parliament now has a wonderful opportunity to address the significant human rights issues raised by the Australian Human Rights Commission in their July 2014 report on this topic.

Some of the ways in which the challenges in this area can be addressed may already be known.  In November 2014, the La Trobe University “Transforming Human Societies” Group supported the “Line in the Sand” Conference in order to generate possible solutions to the overrepresentation of indigenous Australians with cognitive impairment in prison. The conference brought together sixty indigenous and non-indigenous disability, legal and human rights advocates from around the country, who were recruited on the basis that they have direct experience working with indigenous people with cognitive impairment in the criminal justice system.

To generate data from this unique gathering, a focus group technique called nominal group technique (NGT) was used.  In an NGT session, participants are asked to provide responses to a particular issue or question, pool their responses, and then a secret ballot is conducted to list and rank responses in order of importance.[2] Group consensus is reached without being hampered by uneven group dynamics or power relationships.  NGT enables the generation of data that is free from confirmation bias and also enables the development of follow-up questionnaires that have content and construct validity.[3]

Conference participants were first asked to identify the six most significant challenges facing indigenous Australians with cognitive impairment who come into contact with the criminal justice system.  These challenges, in the order in which they were ranked by the stakeholders, are as follows:

  • There is a lack of distinctive, culturally-responsive sentencing and service outcomes other than prison for people with cognitive impairment: there is a need for sustainable, stable, secure, individualised (non-congregate) culturally-responsive accommodation, community supports and transitional options that are specifically funded, and staffed by independent, culturally-responsive caseworkers for people with cognitive impairment that recognise the effect of systems and agencies and their interactions, and makes them responsive, and that adopt systemic case and risk management approaches using non-punitive, therapeutic, least restrictive practice frameworks that leverage support from families and other relevant social services.
  • There is a need for early assessment, diagnosis, support and intervention (including in the juvenile justice system) that prevents criminalization and that is capable of identifying and addressing root causes of offending/anti-social behaviour.
  • There is a need for targeted, uniform, human-rights focused law reform that acknowledges individual needs, that accommodates both support for people with cognitive impairment with protection of the community that addresses the needs for tests of capacity to be nuanced, that ensures terms are limited and regularly reviewed, that incorporates a complaints mechanism, and ensures access to justice and procedural fairness are provided.
  • There is a need for integrated, long-term political will and public sector leadership to respond to the crisis of overrepresentation of indigenous people with cognitive impairment in the criminal justice system by building an appropriate framework of responsive policies, administered by agencies that are accountable.
  • There is a need for identification and recognition of people with cognitive impairment by the justice system (e.g. lawyers, police, corrections, guardians) that acknowledges individual differences (e.g. gender, language) and diversity of situations, conditions and needs.
  • There is a need to raise public awareness and knowledge in the community, within and across the criminal justice system and service systems (including among corrections, among lawyers), to better understand why and how indigenous people with cognitive impairment come into contact with the criminal justice system.

Researchers in the La Trobe Law School have also developed Draft Minimum Legislative Standards for the Senate Inquiry to consider, and are well advanced in administering a national survey which will produce additional useful data for the Inquiry.

Congratulations to the Senate and in particular the Hon Senator Rachel Siewert for her advocacy for people with cognitive impairment or mental health issues in the justice system.

Professor Patrick Keyzer[1], is the Head of School and Chair of Law and Public Policy at La Trobe Law School 

(This research note was tabled at the Law Council of Australia’s Indigenous Imprisonment Forum on 26 November 2015).

[1] Chair of Law and Public Policy and Head of School, La Trobe Law School. The author may be contacted on (03) 9479-2423 or at

[2] Delbecq AL, VandeVen AH and Gustafson DH, “A Group Process Model for Problem Identification and Program Planning” (1971) 7 Journal of Applied Behavioural Science 466.

[3] Coyle IR, Sleeman SD and Adams N, “Safety Climate” (1995) 26(4) Journal of Safety Research 247. A questionnaire based on the present research is currently being administered, with results expected in February 2016.

La Trobe