2 Background: First Nations Perspectives

2.1 Valuing and Listening to Indigenous Women’s Lived Experiences

Indigenous women continue to have a central role in Indigenous families and communities. These roles and responsibilities reflect Indigenous values, and ways of Knowing, Being and Doing which are embedded into society. The position of women within Indigenous Nations is valued and respected, with Indigenous women being holders of knowledge, and having responsibilities different to men, but no less valued. As Eualayai/Gamillaroi woman Distinguished Professor Larissa Behrendt AO observes:

Before the British invasion in 1788, Aboriginal women enjoyed a position in society which has been ignored by many anthropologists. Traditional Aboriginal society was sexist in that it had traditional roles for men and women. But this was not a subordinate relationship. It was an autonomous one. Women had their own special ceremonies and stories which men were not allowed to witness or know.1

This reflects the matriarchal society of many Nation groups, and the importance of men’s business and women’s business. As Palyku woman, writer and law scholar Ambelin Kwaymullina states:

We began here thousands upon thousands of years ago and, from the beginning, Indigenous women were women of power: We walked the hills and the riverbanks and the deserts; we cared for the sacred places; and we followed the law that gave us a place that was different from, but not inferior to, that of the men.2

The role and responsibility of Indigenous women was and continues to be fundamental to Indigenous society. However, since the inception of colonisation, Indigenous women’s positions in community have been and continue to be severely challenged, eroded and undermined,3 which detrimentally impacts upon Indigenous women’s social and emotional wellbeing, and by extension the wellbeing of all family and community. Despite ongoing colonisation, Indigenous women continue to work, resist and fight to fulfil their responsibilities.

With colonisation came the forceful inception of Eurocentric patriarchal ideas, laws and structures. These have sought to erode and exclude Indigenous women’s roles and responsibilities through the implementation of oppressive power imbalances that seek to undermine the place of Indigenous women within families and communities. As Distinguished Professor Behrendt AO observes, ‘Aboriginal women had a position of power within their traditional society that white women have never enjoyed. Sexist oppression by men started when the white invaders arrived’.4

Since the beginning of colonisation, Indigenous women have been subjected to sexual, mental, emotional, cultural, spiritual and physical violence.5 A key tool in legitimising this violence has been the use of dominant narratives that cast Indigenous women as promiscuous and over-sexualised objects.6 This violence inflicted on Indigenous women has largely been ignored and unrecognised as criminal behaviour within society, policing and the legal system. Through its inaction and unwillingness to protect Indigenous women, the legal system has legitimised this interpersonal violence and compounded it through enacting structural violence against Indigenous women. This structural violence towards Indigenous women is evidenced through the silencing and denial of access, protection and justice under the legal system.

Today, this structural violence continues in the legal system. It is evident in the cases of murdered and missing Indigenous women,7 and the punishment and criminalisation of Indigenous female victims of violence by police and child protection agencies,8 contributing to under-reporting and mistrust held by Indigenous women of the system.9 It is also evident in the pathologising and punitive responses adopted towards Indigenous experiences of collective and historical trauma caused by ongoing colonisation which contributes to negative social and health determinants, such as homelessness and substance use. These social and health determinants are critical to determining access to justice; for example, homelessness can impede access to justice mechanisms including bail which can contribute to the hyper-criminalisation and incarceration of Indigenous women within the legal system, including women being held on remand or breaching inappropriate bail conditions.10 As Yuin woman Vicki Roach states:

Too many of our women are trapped in an unresponsive criminal justice system. What is needed are approaches that deal with drugs, family violence, housing, loss of self-esteem, disconnection from country and culture and the myriad other cultural complexities faced by Aboriginal and Torres Strait Islander women, which result in ever increasing numbers of our women and young girls being criminalised.

The criminal justice system assigns personal responsibility and punishes Aboriginal and Torres Strait Islander women for actions that are the consequence of failed child removal and forced assimilation policies. If we are truly concerned about justice for Aboriginal and Torres Strait Islander women however, we should be asking ourselves and our governments, how we as a society have so badly failed these women.

We need alternatives that are healing, not punitive. There’s nothing to be gained from a punitive approach; it doesn’t deter crime. You need to respect women’s dignity, but so often the criminal justice system takes that away.

The criminal justice system damages women, children, men, entire communities. Governments need to get rid of laws that are criminalising so many of our women. When women go to jail, kids are often left behind and go into the child protection system. We have no trust in that system. ‘Tough on crime’ does not work. We need more prevention and diversion. Governments should be looking for ways to close prisons. Governments, courts and police need to work with and learn from Aboriginal and Torres Strait Islander people. We know the solutions — investment in housing, education and health — that’s what makes a difference and helps communities stay strong and healthy.11

Indigenous women through the Australian legal system have also been denied their responsibilities to practise culture, care for Country, fulfil their kinship obligations, raise children, and protect sacred places. Indigenous mothers and their kin have been denied the right to raise children using their childrearing knowledge and practices which have existed for thousands of years. This denial has been achieved through the pathologising of Indigenous communities, women and culture, particularly through dominant narratives of ‘neglect’.12 This has resulted in Indigenous children being forcefully removed from their families and communities since the beginning of colonisation. As Turnbull-Roberts, Salter and Newton observe:

Aboriginal kinship and childrearing were considered threats to Western ideals and the growth of the white Australian nation. Government responses included attempts to ‘breed’ out Aboriginality and Blackness with the intention of Indigenous extinction. Under this policy regime, Aboriginal children were forcibly removed from their country and families to be taught and ‘re-educated’.13

This violence towards Indigenous mothers, Indigenous kinship and family structures, Indigenous children, Indigenous culture and Indigenous Country is evidenced in the testimonies of members of the Stolen Generations in the Bringing Them Home Report.14 Importantly, this violence towards Indigenous families, community, culture and Country persists today and is reflected in the high rates of Indigenous children being placed in out-of-home care.15 As Tanganekald and Meintangk woman and legal scholar Irene Watson states:

Today, Aboriginal children are removed because they are at risk of abuse, abuse whose origins are in the inter-generational trauma of earlier child removal policies. While the reasons for Aboriginal child removal over the years [are] stated differently, its effect on Aboriginal connections to country is the same: we become dispossessed as traditional owners of our country.16

Further, researchers Krakouer, Wise and Connolly write:

Child protection systems need to recognise that family is central to cultural connection for Indigenous children. Indigenous children need to remain connected to family and community to feel connected to their culture. However, Western concepts of permanency threaten family connection, and hence, an Indigenous child’s ability to remain connected to family, culture, and community.17

Today, we continue to observe the silencing experienced by Indigenous women in the legal system. This is reflected in the ways in which certain knowledges are privileged and given weight as evidence in legal proceedings, particularly in native title cases where Indigenous women’s knowledge as cultural experts is undermined, and the knowledge and evidence of non-Indigenous anthropologists is privileged. This privileging undermines and excludes Indigenous women’s laws, knowledge systems, responsibilities and authority. This is reflected in the Women in Native Title: Native Title Report 202418 community guide which observed:

Several of the women interviewed for this Report raised the issue of women’s knowledge being effectively wiped out by the many layers of colonial patriarchy that have built up in the development of the native title system and beyond. It has built up over the course of multiple generations within the professions and epistemologies that the native title system relies on for historical documentary evidence and contemporary evidence processes. The result has been misunderstandings around women’s decision-making about Country and, ultimately, destruction of women’s sites.19

This silencing occurs across the Australian legal system and is also evident in the ways in which Indigenous women’s lived experiences are excluded from knowledge production and relevance within criminal law and family law proceedings. This was identified in research undertaken with over 160 criminalised Indigenous women across prisons in New South Wales. This study found:

First Nations women consistently told us that bail and sentencing courts do not recognise or take into account their role as mothers and caregivers. First Nations women said that criminal courts processed them as ‘statistics’, making them feel ‘worthless’ and ‘belittled’. They described sentencing as upsetting. They felt silenced and unheard. One woman articulated the feeling as ‘suffering in silence’. Women felt that their circumstances were not considered by courts because they were seen as ‘just another Aboriginal woman’. This brush of patriarchal racism contributed to a widespread view among First Nations women that the courts did not care about them or their children.

First Nations mothers felt that judicial officers failed to consider their roles as mothers or account for them in sentencing. Their strengths as mothers and needs of their children was not acknowledged, according to the women …20

Listening, learning and valuing the knowledge shared through Indigenous women’s lived experiences with the legal system is critical to moving beyond oppressive structures and practices that centre deficit narratives which operate to silence and exclude Indigenous women. This silencing and exclusion continues to deny Indigenous women protection, safety and justice. Importantly, it is also critical to recognise the ongoing, fundamental roles Indigenous women have as leaders, caregivers, knowledge holders, teachers, protectors, nurturers and role models within communities and families.21 These roles continue to be practised, embodied and envisioned despite attempts to erode and break down these responsibilities and connections:

Ultimately, women envision a holistic system of supports drawing on their inherent cultural and social strengths and grounded in their self-determination. Women, through firsthand experience, know what is required for their children and families to have healthier and safer existences and they must be empowered and enabled to inform the design and implementation of policy and systems addressing the harms in their lives.22

2.2 First Nations Children and Young People and the Australian Legal System

In response to the question, ‘if you became a law maker for kids, what kind of laws would you make?’ a 10-year-old child said: ‘I make them to dance, culture dance, and make them to hunt, hunting, and make them go to school and learn about the Dreamtime. That’s all.’23

— Holly Doel-Mackaway

First Nations children and young people are the heart of Aboriginal and Torres Strait Islander family. They have a distinct and vital ‘living relationship’ with their family, kin and Country, and, within that, their own obligations from an early age, grounded in reciprocity, to this relationship.24 In First Nations ways of knowing, being and doing, children have an inherent right to grow up in, learn about, maintain, care for, and enjoy their family, kin and Country. The living of this relationship is how a person knows who they are and their Country’s Lore and customs.25 It is indispensable to the social, emotional and cultural wellbeing of First Nations.

The Australian settler-colonial legal system has a long and entrenched history of not understanding and of undermining and violating the interconnected and interdependent relationship between First Nations children, their parents, kin and Country.26 Since Invasion, the settler-colonial legal system has been ‘peculiarly focused on and destructive of Aboriginal and Torres Strait Islander families’,27 with First Nations children being a specific target of harmful laws, practices and policies. Torres Strait Islander scholar Dr Sana Nakata writes:

The brutality inflicted upon Indigenous families and children [is] one effort to realise a white nation on black land, and is a core part of settler-colonial logic.28

The focus on Aboriginal and Torres Strait Islander children began in 1788, which saw extra-legal abduction, exploitation and abuse of First Nations children by various actors within the settler-colony.29 These actions were then transformed into the laws and policies of the ‘protection’ and subsequent assimilation eras throughout the mid-1800s to the 1970s.30 The Bringing Them Home Report31 details the harmful laws, practices and policies that authorised the separation of generations of First Nations children from their families by compulsion, duress or undue influence (forcible removal).32 Aboriginal and Torres Strait Islander children who were stolen under these laws and policies are collectively known as the Stolen Generations. Aboriginal and Torres Strait Islander families ‘contested and resisted’ these laws, policies and practices in any way they could, and the ongoing survival of First Nations children represents continuing First Nations existence in the face of attempted genocide.33 The pain and trauma that was caused by forced child removal and the subsequent physical, psychological and sexual abuse inflicted on stolen children is still held and deeply felt by First Nations peoples, including survivors, their descendants, and their Country today.

Despite findings of the Bringing Them Home Report concluding that historical policies of ‘protection’ and assimilation constituted genocide, contemporary laws, policies and practices continue to authorise paternalistic, racist, harmful state intervention into the lives of Aboriginal and Torres Strait Islander children and families.34 First Nations children and young people continue to be subject to a legal system that perpetuates ongoing harm through its authorisation of practices that significantly restrict or in some cases stop the ability of children and young people to maintain a living relationship with their family, kin, Country and communities. This harm includes racist media portrayals of ‘uncontrollable youth crime’, reactive youth justice policies that contravene international standards on the rights of the child, hyper-surveillance, ongoing child removal, family separation, disruption of education, child incarceration and parental incarceration — all under the ongoing guise of child ‘protection’ and youth and criminal ‘justice’.35

Given the interrelated and interdependent relationship between First Nations peoples and Country, this harm extends to the ongoing authorisation of the physical destruction of Country, including the lack of systemic accountability to mitigate the impacts of climate change to protect Country from further harm. The impacts of climate change on First Nations children’s experience of their culture were heard in Waratah Coal Pty Ltd v Youth Verdict Ltd.36 Juritju Fourmile, a Gimuy Walabuara Yidninji man, explained the significance of caring for Country, so that his children can still practise culture on Country, by reference to the bats in Cairns:

Well, you look at the significance of these bats here now. You look at the stories that we get from those bats, you know, the medicine that we get from those bats. Now, we used to use those bats for our asthma and stuff and for our breathing. We would boil those bats up and then we’ll eat them. Now, due to climate change, if all these bats start dying off and they die, then that’s medicine gone. That’s connection to [C]ountry gone. That’s our stories gone as well, you know? If my daughter was to become someone who has to look after those bats, or she is given the totem to look after those bats, what’s her story? She’s got no story. Then that’s another disconnection on this land further from being dispossessed already, you know? … A whole family group can lose connection, you know, to this one story, due to one climate event, and this one species.37

The generational experiences of laws, practices and policies are what shape First Nations children’s, young people’s and families’ understanding of, and response to, the Australian legal system. For many First Nations children and their families, there is deep mistrust of the legal system. The legal system is experienced as enabling ongoing surveillance that increases the risk of, or actualises, harmful state intervention into Aboriginal and Torres Strait Islander families and lives. Understanding the deep pain and ongoing colonial impacts of this system for First Nations children and families is a critical starting point for addressing ongoing harm and realising Aboriginal and Torres Strait Islander self-determination.

2.2.1 Listening to First Nations Children and Young People

Today, the voices and experiences of Aboriginal and Torres Strait Islander children and their families continue to be undermined and disregarded by contemporary laws, policies and practices. The 2018 Koorie Youth Council report Ngaga-Dji (Hear Me)38 was developed in recognition that the voices and experiences of First Nations children and young people continue to be silenced ‘with incarceration and stigma’.39 Ngaga-Dji (Hear Me) tells the stories of Aboriginal and Torres Strait Islander children and young people around Victoria who have experienced a range of contact with the justice system:

It didn’t matter what I screamed at them. They wanted to tell my story for me. Decide for me. Know what was best for me.40

They didn’t know my story and they didn’t ask. What did they think would change? My life was the same. I was the same. My stupid crimes were the same.41

In part, these stories highlight the lack of meaningful opportunity for participation that children and young people are offered when it comes to decision-making around issues that have significant effects on their lives. Listening to and understanding the lives and experiences of Aboriginal and Torres Strait Islander children, young people and their families is a critical step in understanding the social, emotional and cultural needs of a person. The importance of listening is demonstrated in Binak’s reflection on her experience with Koori Court:

It was the first time I told my story where people heard me. They asked me what I needed and what my family needed. I felt a spark of trust light up again.42

Vanessa Turnbull Roberts is a Bundjalung Widubul-Wiabul lawyer, writer, storyteller and survivor of the Family Policing System (also known as the foster ‘care’ system). She writes:

The Stolen Generations never ended … if we are serious about fundamental change, we need to be serious about the lives of First Nations children. If this government is truly sorry for past practices, then we must do something about the continued practices. We must remove [Department of Communities and Justice] from intervening in the lives of First Nations communities and families, and focus on the strengths of our people and communities. We must be provided the opportunity to heal and to be self-determined.43

Aboriginal and Torres Strait Islander children and young people have informed views on matters that impact their lives. Many are navigating an ‘incongruous relationship between these two systems of law [“white-fella law and black-fella law”]’,44 but the lived experience of this plurality is not often respected by the Australian legal system.45 The meaningful participation of Aboriginal and Torres Strait Islander children and families in their own decision-making remains an ongoing demand of First Nations children, young people, their families and communities, and of advocates and experts, and is vital to keeping First Nations children and young people with their families, kin and culture.

2.3 First Nations Gender and Sexuality Diversity

First Nations ways of knowing, being and doing encompass diverse gender and sexuality identities. The authors of this Bench Book recognise that for Aboriginal and Torres Strait Islander peoples there can be many different ways, including culturally specific ways, to describe genders and sexuality. It is not the purpose or scope of this Bench Book to legitimise one perspective but rather to recognise that experiences of doing gender and sexuality can only accurately be described by the specific person and their community, speaking from their lived experience of diverse gender and sexuality identity.

2.3.1 Some Terms Used in this Bench Book

This Bench Book recognises that Aboriginal and Torres Strait Islander people use a range of terms to describe gender and sexual diversity. This Bench Book makes use of the acronym LGBTQIA+ which is an acronym of the terms ‘lesbian’, ‘gay’, ‘bisexual’, ‘transgender’, ‘queer’, ‘intersex’ and ‘asexual’. The addition of the ‘+’ symbol serves as a reminder that there may be other terms that should be included. We also use the acronym LGBTQIASB+, the addition of ‘SB’ representing the terms ‘sistergirl’ and ‘brotherboy’. These terms are used by some Aboriginal and Torres Strait Islander people and refer exclusively to Aboriginal and Torres Strait Islander women and men who are transgender. Aunty Kooncha Brown, a Yuin Sistergirl, writes:

The use of the term ‘sistergirl’ is a self-adopted term, recognising that western definitions of transgender or gay do not reflect the culture and lived reality of Aboriginal and Torres Strait Islander transgendered people. The term ‘sistergirl’ is also used in many Indigenous communities in northern parts of Australia to refer to transgendered people and to also replace the derogatory terms that were used in the past.46

2.3.2 First Nations Gender and/or Sexuality Diversity and Colonisation

Colonial violence on First Nations Peoples in Australia includes the regulation of gender and sexual identity. This regulation has been imposed by policies, laws and practices that enforce and uphold white hetero-patriarchy — ways of being that, prior to colonisation, were foreign to First Nations Peoples. The impact of colonisation on First Nations gender and sexuality diversity has been argued to have contributed to ‘the silencing and denial of sexual and gender diversity within Aboriginal societies’. Troy-Anthony Baylis, artist and a descendent of the Jawoyn people from the Northern Territory and self-described Queer-Aboriginal, reflects on the historical impacts of colonial policies and laws:

There were policies that sought to dilute and then deny Aboriginal ways of knowing by removing children from their families, the removal, transferral, and confinement of Aboriginal people onto Christian missions; the non-recognition of non-nuclear family structures; and the establishment of a ‘white’ cultural default setting of hetero-patriarchy through British law, Christian morality and capitalism.47

The colonial origins of the Australian legal system mean that, even in its contemporary forms, it continues to uphold settler values as the default. For this reason, it is the responsibility of the legal system’s agents, whether that be judicial officers or practitioners, to be alert to the way the legal system can ignore or disrupt First Nations ways of doing gender and sexuality, and to recognise that First Nations peoples’ right to self-determination encompasses the right to self-determine and affirm sovereignty over their ‘own bodies, gender expressions and sexualities’.48

2.4 Indigenous Peoples with Disabilities

2.4.1 Challenging Dominant Deficit Discourses and Practices of Exclusion that Harm Indigenous Peoples with Disabilities

We never use the word — we never understand the word of — the meaning of disability because we know that our children have different abilities to succeed. We nurture that ability so we just say ‘This one here we need to look after him. We need to help him a little bit more than the others.’ So this is why we need to understand the interpretation of how we identify our young people or people with the needs to help them succeed.49

— Dianne, a Yawuru, Karajarri Senior Community Member

Indigenous communities, cultures and belief systems are centred on diversity and inclusion, which is starkly different to western worldviews.50 Recognising and understanding this difference, particularly in relation to conceptualisations and notions of ‘disability’, are crucial to delivering justice. In identifying and exploring this difference, Dr Scott Avery, descendant of the Worimi people and researcher, adviser and educator who is profoundly deaf, observes:

First Peoples expressions of humanity and diversity are more than just observances of functional linguistics. They speak of a belief system that values a person’s centeredness over biomedical and physical differences, and acceptance of difference as within the natural order of the world. It is a belief system that governs their behaviours, and comes with such a long-standing track record that it need not be consciously taught. Rather it is modelled through Indigenous people’s attitudes towards other members of their community.51

Further, the Final Report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability acknowledges:

First Nations cultural understandings of inclusion do not align with Western concepts of disability, particularly the Western tendency to focus on individual impairment over collective wellbeing.52

Ongoing colonial processes have sought to break down Indigenous cultures, knowledges, peoples and relationships through deploying multiple and diverse strategies.53 With the inception of colonial power came the introduction of deficit narratives which effectively developed and implemented violent categorisation and labelling against Indigenous bodies, including the introduction of the label ‘disability’.54 As Gilroy et al observe:

The Western social construct of ‘disability’ has been imposed on Indigenous peoples without consideration of how Indigenous peoples understand and conceptualise disability and impairment. Since the invasion of Indigenous peoples’ lands, the colonial elite has categorised Indigeneity and disablement based on Eurocentric stereotypes of physiological features and lifestyles in comparison to western norms.55

This, ultimately, introduced harmful processes of social exclusion, and social ordering, through ‘othering’, alienation and dehumanisation.56 Colonisation and its impact on Indigenous peoples with disabilities continues to be experienced today.57 As Dr Avery observes:

The exclusion, dispossession, violence, racism and discrimination has caused, and continues to cause, significant trauma and suffering. These experiences of trauma were pervasive and sustained, and have been passed down and compounded through generations. In essence, the ‘trauma story’ of Aboriginal and Torres Strait Islander people with disability is an impairment uniquely experienced by Aboriginal and Torres Strait Islander people who have been dispossessed from both Country and body.58

This history is critical in understanding First Nations peoples’ experiences today. Importantly, these experiences have contributed to contemporary ill-health and wellbeing concerns within Indigenous communities, including, but not limited to, cognitive and intellectual disabilities, fetal alcohol spectrum disorder (‘FASD’), otitis media (middle ear infection), diabetes, family violence, traumatic brain injury, child developmental concerns, cancer, heart disease, mental unwellness, self-harm and suicide, and substance misuse.59 These experiences have been caused by and through colonisation and its enduring traumatic impacts across generations, and by ongoing racism.60

These historical experiences continue to shape contemporary relationships between Indigenous peoples and non-Indigenous health services, resulting in discrimination, unsafety, fear and mistrust which impact on Indigenous peoples’ access to diagnosis and appropriate supports.61 These experiences are themselves shaped by historical policies and practices of social exclusion, marginalisation and intervention, such as forced child removal and incarceration of people with disability.62 These experiences, ultimately, contributing to ongoing dominant discourses in relation to people with disabilities which continues to contribute to social marginalisation and exclusion.

Indigenous peoples with disabilities continue to experience profound discrimination throughout society today.63 These experiences of discrimination are caused by racism, ableism and intersectional discrimination.64 Discrimination was described by Bundjalung Elder Uncle Lester Bostock as ‘double disadvantage’.65 This is reflected in the experiences shared with the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability by Wiradjuri woman Narelle Reynolds, mother of two sons and family members diagnosed with Fragile X syndrome:

Being Aboriginal on top of being a mother of children with intellectual disability is a double whammy. Being black and fighting through the health system is one thing, but fighting for sons with intellectual disability is another. I don’t know if anyone can understand that. The majority of First Nations people are oppressed. Black fellas always have to comply with white rules. We have to ensure that our place in the world, that is rightfully ours, is safe. We have to show white people our own value. That’s just the way it is.66

These insidious forms of discrimination shape Indigenous peoples’ relationships, experiences and engagement with services and institutions, including the legal system.67 A New South Wales case file review undertaken by Collings et al concluded, ‘[t]he intersection of Aboriginality and intellectual disability appears to increase the risk of negative encounters with child protection systems’.68 Notably, research has also found an over-representation of Indigenous peoples with mental and cognitive disabilities in the criminal legal system.69 Baldry et al observe:

People in the cohort with complex support needs (multiple diagnoses and disability) in particular are significantly more likely to have earlier contact with police, to have been Juvenile Justice clients and to have more police and prison episodes throughout their lives than those with a single or no diagnosis.70

An extensive and growing body of research has identified the injustices experienced by Indigenous peoples with FASD engaging with state systems,71 including the legal and child protection systems.72 FASD is a diagnostic term for the range of physical, cognitive, behavioural and neurodevelopmental issues which can result from prenatal exposure to alcohol.73 It has been described by the National Aboriginal Community Controlled Health Organisation as follows:

Fetal Alcohol Spectrum Disorder (FASD) describes the range of disabilities in children due to alcohol exposure during pregnancy. The impacts may include brain impairments that affect memory and executive functioning (decision-making) and physical impairments that may cause defects to the kidneys, heart, lungs, eyes, ears and musculoskeletal system.74

Further:

[It] is a neurodevelopmental disorder caused by prenatal exposure to alcohol. It may impact multiple areas of development and can lead to a range of physical, behavioural, and intellectual difficulties that may continue into adulthood.75

In recognising and understanding FASD, it must be placed within its colonial context and the trauma caused through ongoing colonial harm.76 As Blagg, Tulich and Bush observe:

The FASD problem cannot be uncoupled from the history of colonial settlement and the multiple traumas resulting from dispossession, nor can solving the problem be isolated from the broader task of decolonizing relationships between Indigenous people and the settler mainstream. The decolonizing process involves expanding the role of Indigenous owned and place-based processes and services embedded in Indigenous knowledge.77

The links between FASD and the criminal justice system have been well established in the literature, which identifies that people with FASD are at increased risk of coming into contact with the justice system, both as victims and as offenders. Individuals with FASD may:

  • have difficulty understanding the arrest and court process;78

  • have diminished competency and capacity and not fully grasp the severity of the situation;79

  • be ‘suggestible’ and at risk of making a false confession without understanding the legal consequences of their behaviour;80 and

  • be at increased risk of being victimised in the criminal justice system.81

A study of the prevalence of FASD among detainees in the Banksia Hill Detention Centre (Western Australia) diagnosed FASD in 36% of the 99 young people (aged 13–17 years) who were assessed, with 74% (or 34 of the youth) being Aboriginal.82 This is the ‘highest reported prevalence of FASD in a youth justice setting worldwide’.83 In their book, Decolonising Justice for Aboriginal Youth with Fetal Alcohol Spectrum Disorder, Blagg, Tulich and Bush observe:

The over-representation of Indigenous youth with FASD in the justice systems in settler states is about intersecting forms of oppression that are founded in, and sustained by, settler colonialism. High rates of FASD in Aboriginal communities in Australia are the consequence of unhealed intergenerational and transgenerational trauma linked to colonial violence and dispossession and its pervasive impact on social, emotional, and cultural well-being of individuals, families, and communities …84

While there is limited research in Australia regarding children with FASD in out-of-home care, trends indicate that children with FASD are overrepresented in out-of-home care.85 In a 2023 study, Williams and Badry explored the experiences of kinship and foster carers raising Indigenous children with FASD. Here, the researchers concluded:

FASD has been referred to as an invisible disability, however, in Australia it has become the most overlooked disability in child protection. A lack of diagnosis and FASD-informed case management in the child welfare system represents a distinct disadvantage to children, their families, and carers.86

Research undertaken by Libesman et al investigating the experiences of parents with disability in the child protection sector, found forms of discrimination across the system, observing that ‘[d]eep-seated discrimination against parents with disability impacts child protection interventions in ways that are compounded by intersections of gender, race and class discrimination’.87

Within this research report, Indigenous and non-Indigenous research participants — which included parents, lawyers and advocates — documented forms of discrimination across the child protection system including the legal system which excluded and prevented parents with disabilities from accessing and participating in child protection proceedings. These experiences included, but were not limited to:

  • the ‘conflation of disability and risk’;88

  • the failure of caseworkers to refer parents to services;89

  • the provision of referrals to inappropriate services;90

  • the imposition of unrealistic and impractical legislative timeframes which limited advocacy and access to support for parents;91

  • the lack of accessible and appropriate information and communication provided to parents which impacted on decision-making;92

  • the lack of support;93

  • the lack of timely access to and adequate legal representation;94

  • being subjected to coercive practices that threatened court proceedings;95

  • the inability to access appropriate, safe, trained, knowledgeable, skilful and experienced legal practitioners able to meet the needs and advocate for parents with disability;96

  • cultural bias in assessments;97

  • inappropriate and potentially harmful court processes such as cross-examination and use of documents;98 and

  • the privileging of evidence given by those deemed as ‘experts’ by the court and department.99

The report observes that ‘[i]n the opinion of most, parents with disability frequently enter and leave Children’s Court proceedings feeling unheard, marginalised, alienated and humiliated’.100

Furthermore, a research project undertaken into Aboriginal people with mental and cognitive disabilities in the criminal legal system found:

Institutional racism, stigma and discrimination are common, marginalising and destructive experiences for Aboriginal people with mental and cognitive disabilities. Interviewees reported discrimination and stigma experienced on the basis of their Aboriginality, their disabilities, and in regard to the criminalisation of their behaviour, affecting their access to education, employment, housing and just legal outcomes. An assimilationist approach was perceived as still pervasive amongst many of those working within criminal justice and human service agencies, with little recognition of the ongoing impact of colonisation, intergenerational trauma, grief and loss for Aboriginal peoples. Misinterpretation of Aboriginal family structures and the nature of protection processes in Aboriginal communities were viewed as underpinning the early and predominantly negative intervention by the state in the lives of many Aboriginal people with mental and cognitive disabilities. The lack of understanding and recognition around cognitive impairment was perceived as a key problem exacerbating contact with the criminal justice system. The over-representation of Aboriginal people with mental and cognitive disabilities in the criminal justice system was described as normalised in every community and context we investigated. Disability emerged as part of the accepted overall presentation of Aboriginal people with multiple and complex support needs in the criminal justice system. The notion that Aboriginal people with disability should be managed by criminal justice agencies and that this is ‘just how it is’, permeates all agencies’ practice. What emerged strongly from the data was the systemic normalisation of disadvantage, disability and offending, with the conflation of these seen most clearly in people with multiple and complex support needs.101

These experiences, shared across the literature, evidence the intersectional discrimination, ableism and racism that persists across society, hindering Indigenous peoples with disability from accessing justice. In listening to and learning from these stories, it is crucial that legal professionals and judicial officers acknowledge these lived experiences and the role of colonisation in driving contemporary processes and practices. This research evidences the ongoing deficit discourses that underpin discriminatory practices that label, humiliate, exclude, silence and marginalise Indigenous peoples with disabilities, impacting on their social and emotional wellbeing, human rights and rights as Indigenous peoples to culture.

Collectively, this research identifies and evidences the harms experienced by Indigenous peoples with disabilities and by their families and communities. This is a critical issue caused through ongoing colonisation which continues to be inadequately and ineffectively recognised and addressed in the legal system which perpetuates violence and oppression against peoples, ensuring a denial of justice. As Blagg, Tulich and Bush observe, ‘far from providing solutions to FASD, the mainstream criminal justice system increases the likelihood of adverse outcomes for children with FASD and their families’.102 In responding to the injustices experienced by peoples engaging with the legal system, it is critical that the lived experiences of Indigenous peoples and families be centred and considered in legal proceedings, and that Indigenous peoples with disability such as FASD have access to trauma-informed and FASD-informed approaches,103 and appropriate legal advocacy.104 Importantly, Indigenous peoples must have access to diagnosis, and resources to ensure they receive critical and necessary supports.105 Furthermore, Indigenous-led solutions must be endorsed and supported.106 As the Final Report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability observes:

Many First Nations people with disability prefer a cultural mode centred on inclusion. This approach recognises that inclusive participation in culture and community has a positive impact on social health and wellbeing, and moderates the harm of inequalities experienced in daily life.107

Further, the Wangkiny Yirra ‘Speaking Up’ Report states:

Best practice in general reflects the importance of practical support across a broad range of basic needs of First Nations people with disabilities. In this regard, the importance of culture being the foundation of any program, activity or service to support disability, health, and wellbeing was emphasised by the women in this study.108

This research evidences the necessity to privilege Indigenous holistic concepts of health, wellbeing and care. Further, it highlights the crucial need to understand the historical context of colonisation, to interrogate and challenge dominant practices, to consider the implications and potential discrimination embedded and exacerbated by legislation, procedures and processes for peoples with disabilities109 and, importantly, to adopt approaches that include and listen to the stories of Indigenous peoples and communities in respectful, appropriate and safe ways as determined by Indigenous peoples with disabilities.


1Larissa Behrendt (Eualayai/Gamillaroi), ‘Aboriginal Women and the White Lies of the Feminist Movement: Implications for Aboriginal Women in Rights Discourse’ (1993) 1(1) Australian Feminist Law Journal 27, 28.

2Ambelin Kwaymullina (Palyku), ‘The Creators of the Future: Women, Law and Telling Stories in Country’ in Patricia Dudgeon (Bardi), Jeannie Herbert (Kimberley region of Western Australia), Jill Milroy (Palyku), Darlene Oxenham (Malgana) (eds), Us Women, Our Ways, Our World (Magabala Books, 2017) 97, 100–1.

3Larissa Behrendt (Eualayai/Gamillaroi), ‘Aboriginal Women and the White Lies of the Feminist Movement: Implications for Aboriginal Women in Rights Discourse’ (1993) 1(1) Australian Feminist Law Journal 27, 28; Patricia Dudgeon (Bardi), Jeannie Herbert (Kimberley region of Western Australia), Jill Milroy (Palyku), Darlene Oxenham (Malgana) (eds), Us Women, Our Ways, Our World (Magabala Books, 2017); Aileen Moreton-Robinson (Goenpul woman of the Quandamooka people), Talkin’ up to the White Woman: Indigenous Women and White Feminism (University of Queensland Press, 2000); Nicole Watson (Birri Gubba and Munanjali) and Heather Douglas, Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision Making (Routledge, 2021) 309.

4Larissa Behrendt (Eualayai/Gamillaroi), ‘Aboriginal Women and the White Lies of the Feminist Movement: Implications for Aboriginal Women in Rights Discourse’ (1993) 1(1) Australian Feminist Law Journal 27, 33.

5Patricia Dudgeon (Bardi), Jeannie Herbert (Kimberley region of Western Australia), Jill Milroy (Palyku), Darlene Oxenham (Malgana) (eds), Us Women, Our Ways, Our World (Magabala Books, 2017).

6Larissa Behrendt (Eualayai/Gamillaroi), ‘Aboriginal Women and the White Lies of the Feminist Movement: Implications for Aboriginal Women in Rights Discourse’ (1993) 1(1) Australian Feminist Law Journal 27; Patricia Dudgeon (Bardi), ‘Mothers of Sin: Indigenous Women’s Perceptions of their Identity and Gender’ (PhD Thesis, Murdoch University, 2007) 255.

7Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Missing and Murdered First Nations Women and Children (Report, August 2024).

8Megan Davies (Cobble Cobble), Family Is Culture: Independent Review of Aboriginal Children and Young People in Out-of-Home Care in NSW (Final Report, October 2019); Human Rights Law Centre and Change the Record, Over-Represented and Overlooked: The Crisis of Aboriginal and Torres Strait Islander Women’s Growing Over-Imprisonment (Report, May 2017); Marcia Langton (Yiman and Bidjara) et al, Improving Family Violence Legal and Support Services for Aboriginal and Torres Strait Islander Women (Research Report, ANROWS, December 2020); Yoorrook for Justice, Report into Victoria’s Child Protection and Criminal Justice Systems (Report, 2023).

9Human Rights Law Centre and Change the Record, Over-Represented and Overlooked: The Crisis of Aboriginal and Torres Strait Islander Women’s Growing Over-Imprisonment (Report, May 2017); Marcia Langton (Yiman and Bidjara) Kirsten Smith, Tahlia Eastman (Pakana and European descent), Lily O’Neill, Emily Cheesman, Meribah Rose, Improving Family Violence Legal and Support Services for Aboriginal and Torres Strait Islander Women (Research Report, ANROWS, December 2020); Yoorrook Justice Commission, Yoorrook for Justice: Report into Victoria’s Child Protection and Criminal Justice Systems (Report, August 2023).

12Laura Dunstan, Belinda Hewitt and Sana Nakata (Torres Strait Islander), ‘Indigenous Family Life in Australia: A History of Difference and Deficit’ (2020) 55(3) Australian Journal of Social Issues 323; BJ Newton, ‘Understanding Child Neglect in Aboriginal Families and Communities in the Context of Trauma’ (2019) 24(2) Child & Family Social Work 218, 220; Vanessa Turnbull-Roberts (Bundjalung Widubul-Wiabul), Michael Salter and BJ Newton (Wiradjuri), ‘Trauma Then and Now: Implications of Adoption Reform for First Nations Children’ (2022) 27(2) Child & Family Social Work 163, 164; Yoorrook Justice Commission, Yoorrook for Justice: Report into Victoria’s Child Protection and Criminal Justice Systems (Report, August 2023).

13Vanessa Turnbull-Roberts (Bundjalung Widubul-Wiabul), Michael Salter and BJ Newton (Wiradjuri), ‘Trauma Then and Now: Implications of Adoption Reform for First Nations Children’ (2022) 27(2) Child & Family Social Work 163, 164.

14National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Bringing Them Home (Report, 1997).

15Catherine Liddle (Arrernte/Luritja) et al (SNAICC), Family Matters (Report, October 2023) 25; Megan Davies (Cobble Cobble), Family Is Culture: Independent Review of Aboriginal Children and Young People in Out-of-Home Care in NSW (Report, October 2019) 30; Queensland Aboriginal and Torres Strait Islander Child Protection Peak (QATSICPP), Aboriginal and Torres Strait Islander Children in the Queensland Child Protection System: 19/20 Data Summary (May 2022) 8.

16Irene Watson (Tanganekald/Meintangk), ‘De-Colonising the Space: Dreaming Back to Country’ in Sally Morgan (Palku/Nyamal), Mia Tjalaminu (Minang/Goreng) and Blaze Kwaymullina (Palyku) (eds), Heartsick for Country: Stories of Love, Spirit, and Creation (Fremantle Press, 2008) 82, 83.

17Jacynta Krakouer (Mineng Noongar woman), Sarah Wise and Marie Connolly, ‘“We Live and Breathe Through Culture”: Conceptualising Cultural Connection for Indigenous Australian Children in Out-of-Home Care’ (2018) 71(3) Australian Social Work 265, 273.

18Josephine McLeod, Libby Gunn and Nick Devereaux, Australian Human Rights Commission, Women in Native Title: Native Title Report 2024 — Community Guide (Report, April 2024).

19Josephine McLeod, Libby Gunn and Nick Devereaux, Australian Human Rights Commission, Women in Native Title: Native Title Report 2024 — Community Guide (Report, April 2024) 33.

20Thalia Anthony, Gemma Sentance (Wiradjuri), and Larissa Behrendt (Eualayai/Gamillaroi), ‘“We’re Not Being Treated Like Mothers”: Listening to the Stories of First Nations Mothers in Prison’ (2021) 10(3) Laws 74, 13.

21Wiyi Yani U Thangani (Women’s Voices), Securing Our Rights, Securing Our Future (Report, Australian Human Rights Commission, 2020).

22Wiyi Yani U Thangani (Women’s Voices), Securing Our Rights, Securing Our Future (Report, Australian Human Rights Commission, 2020) 121.

23Holly Doel-Mackaway, ‘“Ask Us … This Is Our Country”: Designing Laws and Policies with Aboriginal Children and Young People’ (2019) 27(1) International Journal of Children’s Rights 31, 44.

24Aunty Murial Bamblett (Yorta Yorta, Dja Dja Wurrung, Taungurung, Boon Wurrung), et al, ‘Not One Size Fits All’: Understanding the Social and Emotional Wellbeing of Aboriginal Children (Report, 2012) 10–11.

25Aunty Murial Bamblett, (Yorta Yorta, Dja Dja Wurrung, Taungurung, Boon Wurrung), et al, ‘Not One Size Fits All’: Understanding the Social and Emotional Wellbeing of Aboriginal Children (Report, 2012) 10–11.

26Terri Libesman, Katherine Ellinghaus and Paul Gray (Wiradjuri), ‘Colonial Law and Its Control of Aboriginal and Torres Strait Islander Families’ in Peter Cane, Lisa Ford and Mark McMillan (eds), The Cambridge Legal History of Australia (Cambridge University Press, 2022) 436, 437.

27Terri Libesman, Katherine Ellinghaus and Paul Gray (Wiradjuri), ‘Colonial Law and Its Control of Aboriginal and Torres Strait Islander Families’ in Peter Cane, Lisa Ford and Mark McMillan (eds), The Cambridge Legal History of Australia (Cambridge University Press, 2022) 436, 433.

28Sana Nakata (Torres Strait Islander), ‘The Re-Making of Nation and Indigenous Australian Children’ (2017) 76(4) Australian Journal of Public Administration 397, 398.

29Terri Libesman, Katherine Ellinghaus and Paul Gray (Wiradjuri), ‘Colonial Law and its Control of Aboriginal and Torres Strait Islander Families’ in Peter Cane, Lisa Ford and Mark McMillan (eds), The Cambridge Legal History of Australia (Cambridge University Press, 2022) 436, 434–6.

30Terri Libesman, Katherine Ellinghaus and Paul Gray (Wiradjuri), ‘Colonial Law and Its Control of Aboriginal and Torres Strait Islander Families’ in Peter Cane, Lisa Ford and Mark McMillan (eds), The Cambridge Legal History of Australia (Cambridge University Press, 2022) 436, 436–48.

31National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Bringing Them Home (Report, 1997).

32National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Bringing Them Home (Report, 1997) 1.

33Terri Libesman, Katherine Ellinghaus and Paul Gray (Wiradjuri), ‘Colonial Law and Its Control of Aboriginal and Torres Strait Islander Families’ in Peter Cane, Lisa Ford and Mark McMillan (eds), The Cambridge Legal History of Australia (Cambridge University Press, 2022) 436, 447.

34Terri Libesman, Katherine Ellinghaus and Paul Gray (Wiradjuri), ‘Colonial Law and Its Control of Aboriginal and Torres Strait Islander Families’ in Peter Cane, Lisa Ford and Mark McMillan (eds), The Cambridge Legal History of Australia (Cambridge University Press, 2022) 436, 443.

35Lorelle Holland, (Mandandanji), Claudia Lee, Maree Toombs (Euralayaei/Kooma), Andrew Smirnov, Natasha Reid, ‘Resisting the Incarceration of Aboriginal and Torres Strait Islander Children: A Scoping Review to Determine the Cultural Responsiveness of Diversion Programs’ (2024) 2(1) Lowitja Journal 1, 2.

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37Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1560].

38Anna Cerreto and Koorie Youth Council, Ngaga-Dji (Hear Me): Young Voices Creating Change for Justice (Report, August 2018).

39Anna Cerreto and Koorie Youth Council, Ngaga-Dji (Hear Me): Young Voices Creating Change for Justice (Report, August 2018) 5.

40Anna Cerreto and Koorie Youth Council, Ngaga-Dji (Hear Me): Young Voices Creating Change for Justice (Report, August 2018) 8.

41Anna Cerreto and Koorie Youth Council, Ngaga-Dji (Hear Me): Young Voices Creating Change for Justice (Report, August 2018) 27.

42Anna Cerreto and Koorie Youth Council, Ngaga-Dji (Hear Me): Young Voices Creating Change for Justice (Report, August 2018) 15.

43Vanessa Turnbull-Roberts (Bundjalung Widubul-Wiabul), ‘I was 10 Years Old When I Was Taken from My Home. The Stolen Generations Never Ended’, The Guardian (online, 12 February 2023) <https://www.theguardian.com/commentisfree/2023/feb/12/i-was-10-years-old-when-i-was-taken-from-my-home-the-stolen-generations-never-ended>.

44Holly Doel-Mackaway, ‘“Ask Us … This Is Our Country”: Designing Laws and Policies with Aboriginal Children and Young People’ (2019) 27(1) International Journal of Children’s Rights 31, 41.

45Holly Doel-Mackaway, ‘“Ask Us … This Is Our Country”: Designing Laws and Policies with Aboriginal Children and Young People’ (2019) 27(1) International Journal of Children’s Rights 31, 41.

46Aunty Kooncha Brown (Yuin), ‘“Sistergirls”: Stories from Indigenous Australian Transgender People’ (2004) 28(6) Aboriginal and Islander Health Worker Journal 25, 25.

47Troy-Anthony Baylis (Jawoyn), ‘Introduction: Looking In to the Mirror’ in Dino Hodge (ed), Colouring the Rainbow: Blak Queer and Trans Perspectives (Wakefield Press, 2015) 1, 10.

48Alex Wilson (Opaskwayak Cree Nation member), ‘Our Coming In Stories: Cree Identity, Body Sovereignty and Gender Self Determination’ (2015) 1(1) Journal of Global Indigeneity 1, 3.

49Jocelyn Jones (Nyoongar woman with Wadjuk, Ballardong and Palyku connections), et al, Wangkiny Yirra ‘Speaking Up’ Project: First Nations Women and Children with Disability and Their Experiences of Family and Domestic Violence (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 6 June 2023) 16.

50Scott Avery (Worimi), Culture Is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability (First Peoples Disability Network, 2018) 4; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 29 September 2023) vol 9, 33; Jocelyn Jones (Nyoongar woman with Wadjuk, Ballardong and Palyku connections) et al, Wangkiny Yirra ‘Speaking Up’ Project: First Nations Women and Children with Disability and Their Experiences of Family and Domestic Violence (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 6 June 2023) 16.

51Scott Avery (Worimi), Culture Is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability (First Peoples Disability Network, 2018) 4.

53Scott Avery (Worimi), Culture Is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability (First Peoples Disability Network, 2018) 8–9.

54Scott Avery (Worimi), Culture Is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability (First Peoples Disability Network, 2018) 4; John Gilroy et al, ‘Indigenous Persons with Disability in Remote Australia: Research Methodology and Indigenous Community Control’ (2018) 33(7) Disability & Society 1025, 1027.

55John Gilroy (Yuin), et al, ‘Indigenous Persons with Disability in Remote Australia: Research Methodology and Indigenous Community Control’ (2018) 33(7) Disability & Society 1025, 1027.

56Scott Avery (Worimi), Culture Is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability (First Peoples Disability Network, 2018) 8–9; John Gilroy (Yuin), et al, ‘Indigenous Persons with Disability in Remote Australia: Research Methodology and Indigenous Community Control’ (2018) 33(7) Disability & Society 1025, 1026; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 29 September 2023) vol 9, 27.

57Scott Avery (Worimi), Culture Is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability (First Peoples Disability Network, 2018) 8; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, First Nations People with Disability (Final Report, 29 September 2023) vol 9, 27.

58Scott Avery (Worimi), Culture Is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability (First Peoples Disability Network, 2018) 9.

59Jocelyn Jones (Nyoongar woman with Wadjuk, Ballardong and Palyku connections), et al, Wangkiny Yirra ‘Speaking Up’ Project: First Nations Women and Children with Disability and Their Experiences of Family and Domestic Violence (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 6 June 2023).

60Scott Avery (Worimi), Culture Is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability (First Peoples Disability Network, 2018) 9; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 29 September 2023) vol 9, 36–9.

61Scott Avery (Worimi), Culture Is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability (First Peoples Disability Network, 2018) 143; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 29 September 2023) vol 9, 77.

62Scott Avery (Worimi), Culture Is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability (First Peoples Disability Network, 2018) 168–9; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 29 September 2023) vol 9, 36–9.

63Scott Avery (Worimi), Culture Is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability (First Peoples Disability Network, 2018) 9; Jeromey Temple et al, ‘Exposure to Interpersonal Racism and Avoidance Behaviours Reported by Aboriginal and Torres Strait Islanders with a Disability’ (2020) 55(4) Australian Journal of Social Issues 373, 377; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 29 September 2023) vol 9, 14.

64Scott Avery (Worimi), Culture Is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability (First Peoples Disability Network, 2018) 36; Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, 29 September 2023) vol 9, 14; Jeromey Temple et al, ‘Exposure to Interpersonal Racism and Avoidance Behaviours Reported by Aboriginal and Torres Strait Islanders with a Disability’ (2020) 55(4) Australian Journal of Social Issues 373, 377.

65Scott Avery (Worimi), Culture Is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability (First Peoples Disability Network, 2018) 36.

67Scott Avery (Worimi), Culture Is Inclusion: A Narrative of Aboriginal and Torres Strait Islander People with Disability (First Peoples Disability Network, 2018) 140–3; Susan Collings et al, ‘Intersectional Disadvantage: Exploring Differences between Aboriginal and Non-Aboriginal Parents with Intellectual Disability in the New South Wales Child Protection System’ (2017) 12(2) Journal of Public Child Welfare 170, 170.

68Susan Collings et al, ‘Intersectional Disadvantage: Exploring Differences Between Aboriginal and Non-Aboriginal Parents with Intellectual Disability in the New South Wales Child Protection System’ (2017) 12(2) Journal of Public Child Welfare 170, 170.

71Robyn Williams (Nyoongar), and National Aboriginal Community Controlled Health Organisation (NACCHO), ‘Pathways to Screening and Diagnosis of Neurodevelopmental Conditions’ (Report) 1; Carol Bower and Elizabeth Elliot, ‘Australian Guide to the Diagnosis of Fetal Alcohol Spectrum Disorder (FASD)’ (Report, Department of Health (Cth), February 2020) 16; Harry Blagg, Tamara Tulich and Zoe Bush, ‘Indefinite Detention Meets Colonial Dispossession: Indigenous Youths with Foetal Alcohol Spectrum Disorders in a White Settler Justice System’ (2017) 26(3) Social & Legal Studies 333, 334.

72Harry Blagg, Tamara Tulich and Zoe Bush, ‘Indefinite Detention Meets Colonial Dispossession: Indigenous Youths with Foetal Alcohol Spectrum Disorders in a White Settler Justice System’ (2017) 26(3) Social & Legal Studies 333, 334, 343.

73Carol Bower and Elizabeth Elliot, ‘Australian Guide to the Diagnosis of Fetal Alcohol Spectrum Disorder (FASD)’ (Report, Department of Health (Cth), February 2020).

74Robyn Williams (Nyoongar), and National Aboriginal Community Controlled Health Organisation (NACCHO), ‘Fetal Alcohol Spectrum Disorder (FASD): A Neurodevelopmental Disorder’ (Fact Sheet) 1.

75Robyn Williams (Nyoongar), and National Aboriginal Community Controlled Health Organisation (NACCHO), ‘Aboriginal Leadership in the Proactive Treatment of Fetal Alcohol Spectrum Disorder’ (Fact Sheet) 1.

77Harry Blagg, Tamara Tulich and Zoe Bush, ‘Indefinite Detention Meets Colonial Dispossession: Indigenous Youths with Foetal Alcohol Spectrum Disorders in a White Settler Justice System’ (2017) 26(3) Social & Legal Studies 333, 335.

78Diane Fast and Julianne Conry, ‘Fetal Alcohol Spectrum Disorders and the Criminal Justice System’ (2009) 15(3) Developmental Disabilities Research Reviews 250, 254.

79Diane Fast and Julianne Conry, ‘Fetal Alcohol Spectrum Disorders and the Criminal Justice System’ (2009) 15(3) Developmental Disabilities Research Reviews 250, 255.

80Diane Fast and Julianne Conry, ‘Fetal Alcohol Spectrum Disorders and the Criminal Justice System’ (2009) 15(3) Developmental Disabilities Research Reviews 250, 254.

81Diane Fast and Julianne Conry, ‘Fetal Alcohol Spectrum Disorders and the Criminal Justice System’ (2009) 15(3) Developmental Disabilities Research Reviews 250, 250.

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83Carol Bower et al, ‘Fetal Alcohol Spectrum Disorder and Youth Justice: A Prevalence Study among Young People Sentenced to Detention in Western Australia’ (2018) 8(2) BMJ Open 1, 7.

84Harry Blagg, Tamara Tulich and Robyn Williams, Decolonising Justice for Aboriginal Youth with Fetal Alcohol Spectrum Disorders (Routledge Focus, 2021) 2.

85Robyn Williams (Nyoongar) and Dorothy Badry, ‘Aboriginal Kinship Carers and Children with Fetal Alcohol Spectrum Disorder in Western Australia: Advancing Knowledge from an Indigenous and Disability Lens’ (2023) 18(1) First Peoples Child & Family Review 60, 72.

86Robyn Williams (Nyoongar) and Dorothy Badry, ‘Aboriginal Kinship Carers and Children with Fetal Alcohol Spectrum Disorder in Western Australia: Advancing Knowledge from an Indigenous and Disability Lens’ (2023) 18(1) First Peoples Child & Family Review 60, 72.

87Terri Libesman et al, Parents with Disability and Their Experiences of Child Protection Systems (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 11 July 2023) 273.

88Terri Libesman et al, Parents with Disability and Their Experiences of Child Protection Systems (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 11 July 2023) 2.

89Terri Libesman et al, Parents with Disability and Their Experiences of Child Protection Systems (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 11 July 2023) 205.

90Terri Libesman et al, Parents with Disability and Their Experiences of Child Protection Systems (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 11 July 2023) 206.

91Terri Libesman et al, Parents with Disability and Their Experiences of Child Protection Systems (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 11 July 2023) 207.

92Terri Libesman et al, Parents with Disability and Their Experiences of Child Protection Systems (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 11 July 2023) 210.

93Terri Libesman et al, Parents with Disability and Their Experiences of Child Protection Systems (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 11 July 2023) 213.

94Terri Libesman et al, Parents with Disability and Their Experiences of Child Protection Systems (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 11 July 2023) 214.

95Terri Libesman et al, Parents with Disability and Their Experiences of Child Protection Systems (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 11 July 2023) 215.

96Terri Libesman et al, Parents with Disability and Their Experiences of Child Protection Systems (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 11 July 2023) 220.

97Terri Libesman et al, Parents with Disability and Their Experiences of Child Protection Systems (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 11 July 2023) 250.

98Terri Libesman et al, Parents with Disability and Their Experiences of Child Protection Systems (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 11 July 2023) 231.

99Terri Libesman et al, Parents with Disability and Their Experiences of Child Protection Systems (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 11 July 2023) 232.

100Terri Libesman et al, Parents with Disability and Their Experiences of Child Protection Systems (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 11 July 2023) 231.

102Harry Blagg, Tamara Tulich and Robyn Williams (Nyoongar), Decolonising Justice for Aboriginal Youth with Fetal Alcohol Spectrum Disorders (Routledge Focus, 2021) 2.

103Robyn Williams (Nyoongar) and Dorothy Badry, ‘Aboriginal Kinship Carers and Children with Fetal Alcohol Spectrum Disorder in Western Australia: Advancing Knowledge from an Indigenous and Disability Lens’ (2023) 18(1) First Peoples Child & Family Review 60, 119.

104Robyn Williams (Nyoongar) and National Aboriginal Community Controlled Health Organisation (NACCHO), ‘Advocacy and Recognition of Fetal Alcohol Spectrum Disorder (FASD)’ (Fact Sheet) 1.

105Robyn Williams (Nyoongar) and National Aboriginal Community Controlled Health Organisation (NACCHO), ‘Advocacy and Recognition of Fetal Alcohol Spectrum Disorder (FASD)’ (Fact Sheet) 73.

106Robyn Williams (Nyoongar) and National Aboriginal Community Controlled Health Organisation (NACCHO), ‘Advocacy and Recognition of Fetal Alcohol Spectrum Disorder (FASD)’ (Fact Sheet) 73.

108Jocelyn Jones (Nyoongar woman with Wadjuk, Ballardong and Palyku connections), et al, Wangkiny Yirra ‘Speaking Up’ Project: First Nations Women and Children with Disability and their Experiences of Family and Domestic Violence (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 6 June 2023) 160.

109Jocelyn Jones (Nyoongar woman with Wadjuk, Ballardong and Palyku connections), et al, Wangkiny Yirra ‘Speaking Up’ Project: First Nations Women and Children with Disability and Their Experiences of Family and Domestic Violence (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 6 June 2023).