How the law is failing people with disability
Legal safeguards in place to keep people with disability – an overrepresented group in the criminal justice system – out of prison, are cementing injustice into the justice process.
Court diversions move people with disability from criminal justice systems and into mental health and disability services.
It sounds humane, but in effect has placed people who haven’t been sentenced, and sometimes not even tried and convicted of the criminal charges, into other forms of incarceration and harm.
In her new book, Disability, Criminal Justice, and Law, Dr Linda Steele, Senior Lecturer at UTS Faculty of Law, argues that diverting people with disability from criminal justice systems undermines rather than achieves social justice. Medicalisation and criminalisation are two sides of the same coin, and both continue the oppression, control and punishment of disabled people.
Joining Dr Steele for her book launch, Dr Liat Ben-Moshe, Dr Claire Spivakovsky, El Gibbs, and Verity Firth examined the systemic problems of disability-specific intervention in debilitating people with disability, and reimagined the socio-legal relationship with more just policies and processes.
VERITY FIRTH: Hello everyone who's joining us for today's webinar. We'll just wait for about a minute while people enter the virtual room, but thank you for joining us.
Hello everyone joining us today. We'll just give it maybe 20 more seconds just while a few people join, and then we'll kick off today's webinar.
All right, we'll begin. Probably some more people will enter as I speak, but we might as well get the niceties over and we'll then be able to commence with the event.
Firstly, thank you everyone who's joining us online. It's a really interesting event we've got for you today and I'll be introducing you to our panel in a second. But first I'd like to acknowledge that I'm here today at UTS, so I'm therefore on the land of the Gadigal people of the Eora Nation. I pay respect to Elders past and present and in particular I want to recognise the Gadigal people as the traditional custodians of knowledge for the land upon which this university is built.
One of the things we've been doing at our webinars is if people can just pop into the chat whose land they are on today. That's one of the nice things we like to do where we all individually acknowledge Indigenous ownership of the land upon which we are all meeting.
My name is Verity Firth. I'm the Executive Director of Social Justice here at UTS and I head up our Centre for Social Justice and Inclusion. We're all here today to launch Dr Linda Steele's latest book Disability, Criminal Justice, and Law. It's my pleasure to be joined not only by Linda, who you'll see here, but we've also got a number of other distinguished panellists: El Gibbs, Dr Liat Ben‑Moshe and Claire Spivakovsky. I'll have the chance to introduce each of them properly shortly.
But a little housekeeping before we begin. First, this event is being live captioned. So if you want to view the captions, you need to click on the link that is in the chat and you'll find the chat at the bottom of your screen in the Zoom control panel. Once you've done that, the captions will open up in a separate window.
If you have any questions during today's event, you type them into the Q&A box, so don't type them into the chat. We had that issue happen before. Click on the Q&A box and you type them in there. The good thing about that is that's where we'll be accessing the questions. You can also upvote other people's questions. Once in the Q&A box, if there's a question you particularly like the sound of, you can upvote them. I will be moderating the questions and then asking the questions. Most of the time I ask the ones that are most popular because that seems fairest, but sometimes I also ask some others if they're particularly pertinent to one of the issues that the speakers has been talking about.
So the focus of Linda's book and today's discussion is the challenges of achieving human rights and social justice for people with disability in the criminal justice system. We're also looking at how the law can actually play a role of furthering injustice. We know that people with cognitive impairment and psychosocial disability are overrepresented in the criminal justice system. Conventionally, this is attributed to the failure to provide medical, housing and social support to people with disability in the wake of deinstitutionalisation, which began more than 35 years ago.
In an effort to keep people with disability out of prison, legal measures were introduced to divert people with disability from criminal justice systems and into mental health and disability services. Instinctively, that may seem therapeutic, humane and socially just, but in her book, Linda argues it might just undermine, rather than achieve, the pursuit of social justice for people with disability and lead to the criminalisation, punishment and control of people who haven't been sentenced and might not even have been tried and convicted of the criminal charges.
Our panel today is going to examine the longstanding practices of disability‑specific coercive intervention, the relationships between disability, criminal justice and law, and reimagine these relationships with more just and humane policies and processes for people with disability.
So it's my pleasure now to introduce today's panellists. Dr Linda Steele, the star of the moment you'll be hearing from in a minute, is a socio‑legal researcher working at the intersections of disability law and social justice. She's also a Senior Lecturer here at the UTS Faculty of Law. She's been researching disability law and social issues for over a decade, having previously been a solicitor with the Intellectual Disability Rights Service in Sydney. Her research is directed towards thinking more creatively and critically about how we engage with law in order to achieve social justice for the disability community. She has particular expertise in the law's role in enabling and redressing violence against people with disability, including in the context of sterilisation, criminal justice system and disability residential settings.
Linda is currently leading projects exploring the role of former disability institutions in remembrance of and redressing disability institutional violence and on Australian Disability Enterprises as modern slavery or labour exploitation ‑ wow, that's really interesting, Linda, we'll look forward to hearing from you.
Liat Ben‑Moshe is an Assistant Professor of Criminology, Law and Justice at the University of Illinois at Chicago. She's the author of Decarcerating Disability: Deinstitutionalization and Prison Abolition, published this year, 2020. She's also the co‑editor of Disability Incarcerated. She is an activist scholar working at the intersection of incarceration, abolition and disability madness. Welcome, Liat. Thank you for joining us.
El Gibbs is the Director, Media and Communications for People with Disability Australia. She is also an award‑winning writer with a focus on disability and social issues published widely. Welcome, El.
And Dr Claire Spivakovsky is a Senior Lecturer in Criminology at the University of Melbourne. Claire is interested in challenging the role of law and legal processes in the ongoing segregation and coercive control of people with disability within what is claimed to be a deinstitutionalised community. As such, much of Claire's work focuses on the use of violent, restrictive and coercive practices in community settings such as group homes and schools. She's also the lead editor of the edited collections The Legacies of Institutionalisation: Disability, Law and Policy in the 'Deinstitutionalised' Community, and Critical Perspectives on Coercive Interventions: Law, Medicine and Society. Welcome, Claire.
What a fantastic panel we have, just so much knowledge and expertise. I can't wait to hear from you all.
So we're just going to kick off with Linda. Linda is going to give us a bit of an overview of her book, a bit of an introduction, and then we'll open it up to panel discussion. As I said before, if anything comes up for you and you have a question you want me to ask the panel, please pop it in the Q&A box. Over to you, Linda.
DR LINDA STEELE: Thanks, Verity, and thank you to everyone attending today to listen. I'll do a proper thank you at the end for the many people who've had a role in the book for this event.
As Verity mentioned, it's widely observed that disabled people, and particularly those with cognitive impairments and psychosocial disabilities, are overrepresented in prisons across many jurisdictions, including Australia, Canada, US, UK, New Zealand, and we also know that First Nations people with disabilities and racialised minorities with disabilities are also overrepresented, particularly overrepresented.
So I first became engaged in this issue when I worked as a lawyer in New South Wales, Australia and I was representing people with intellectual disability and acquired brain injury, or ABI, in low‑level criminal justice matters. What struck me is that while all of my clients were labelled with a particular disability, this was really only one aspect of their identity or social circumstances. So many of them also experienced poverty, homelessness, childhoods of abuse and being in out‑of‑home care, experiences of substance use and physical health issues, a lack of social, emotional or financial support, experiences of violence, including state violence, and other victimisation, and some were Indigenous or others were refugees.
Many had justiciable issues, legal issues, particularly related to their experiences of violence, including violence in the context of prisons, police or out‑of‑home care, which had never been resolved or addressed through the courts, and I explore this a lot more in chapter 5 of my book. But what really struck me was that their presence in the criminal justice system, their incarceration or their overrepresentation, was not the logical end point of the social circumstance that actually was an iterative or it was kind of interrelated with these social circumstances.
So in this context, in this kind of broader context beyond disability, lawyers have a very limited legal toolkit to use when responding to a client who has criminal charges, but one option that we had in New South Wales is for people with disabilities to be diverted from the criminal justice system. So this involves asking the court to make an order that an individual be moved out of the criminal justice process, have their charges dismissed, but on the condition that they engage with disability or mental health services for six months.
Usually that order requires that they take direction and supervision from a case worker or a treating mental health professional. It might say that they need to live at a certain place, usually a group home, but other times these orders also connect to other legal orders, such as guardianship or mental health orders that can enable forced medication, can enable the use of restrictive practices, so people being chemically restrained in their home, being locked in their room or being locked in their home.
So court diversion is presented as a humane and therapeutic and even empowering option because it keeps people out of prison, gets them in the community and links them up to services that they might be seen as needing, but for me there are three key issues which I set out in chapter 2 of the book but which I'll just outline here. One is that people with disability are being subject to coercive orders when they have not actually been convicted and sometimes haven't even been tried of any criminal offences, so the kind of entry point into these orders is the criminal charge but ultimately whether they even committed that offence is never actually established. Whereas other people who are found not guilty or never tried for a criminal offence are simply free to go and free of legal orders coercing them into certain conduct or interventions, people with disability have this additional option for coercion additional to incarceration and other sentences.
Second, the solution that's purportedly helping people with disability in the criminal justice system is actually shifting individuals into alternative coercive intervention through disability and mental health services, particularly when restrictive practices or forced mental health treatment is involved. Additionally, court diversion doesn't question the kind of structural problems with prison which are prisons presented as this place where we need to get people with disability out of through diversion, but the legal process itself doesn't actually ever kind of pinpoint or address or fix those problems with prisons. Nor does court diversion address the interlocking oppression beyond this kind of narrow idea of disability as a medical condition. So the focus in diversion is on disability as the key aspect of identity, which kind of results in the other social circumstances which I mentioned earlier on simply kind of disappearing from view or being incomprehensible in the legal process.
Thirdly, only a minority of people with disability appearing before courts on criminal charges are ever diverted, usually the ones that are seen as kind of having less serious criminal charges or are seen as having the greatest chance of success or compliance with these orders. The majority are still dealt with through the usual criminal justice process and potentially imprisoned. So while diversion's humaneness rests on the ability to save some people from prison, it leaves unchanged the existence and structural conditions and structural harms of the prison.
So while these three concerns for me emerge in the very specific context of court diversion in New South Wales, I think that they speak to a broader set of concerns across legal mechanisms and across countries about the tensions between disability, social justice on the one hand and the persistent medicalisation and pathologisation of disability in criminal justice and criminal law.
VERITY FIRTH: That's really interesting. I had no idea before now about the coercive orders even if you haven't been charged or convicted. That's pretty incredible.
Starting with an open question for all of the panellists, and I might start with you, El. Why is this book necessary? What challenges do people with disability face in the criminal justice system and what did you most get from this book?
EL GIBBS: Thanks so much, Linda and Verity and everyone. It's lovely to be here greeting you from unceded Wiradjuri land in New South Wales. I think for me one of the key parts of the book was stories of disabled people that Linda told and they are stories of enormous intervention by the state in their lives at every point. Children are removed from family, from country and put in institutions like group homes and when they resist this institutionalisation, they're put in contact with the police and with juvenile detention. As adults, they continue to have large amounts of contact with the police, prison time and, as Linda has outlined, it's mandated disability and mental health services. And at each stage there is violence and abuse structured into the system.
I think it says some really interesting things about the NDIS. So in Australia there's the National Disability Insurance Scheme and the main way some disabled people get their supports and what it means for in particular disabled people that Linda is talking about who are part of the criminal justice system.
When the NDIS first started to roll out, there was a statement called out called people on the fringe which some of you signed up to I remember, but this issue around access to the NDIS for people with disability who are engaged with the criminal justice system has been known for a long time. There was a research project done by the Community Restorative Centre in New South Wales fairly recently that's found that disabled people who were formerly receiving supports through state‑based services were no longer receiving any support in the community, none, and this population, from their report under the NDIS, were more likely to be criminalised as part of their disability ‑ more likely rather than less.
So I think this reflects a lot of what Linda is talking about in her book and I think it also reflects on some of the stuff that us as disability advocates need to have some really hard thinking about in terms of how we advocate and what we advocate for because there are some things that have been advocated for like court diversion that Linda is showing really clearly is causing significant harm and I think that that's a reflection that advocates like me and organisations need to really think hard about about what we do and how we do that.
The frame in this book that I found really powerful was the criminalisation of distress and for the disabled people that Linda is talking about and writing in parts of it extremely beautifully about and clearly about, their resistance to this state violence and the resistance to being categorised as the problem is seen as criminal and their very disability becomes criminalised.
So I think that we have to think hard about it and, as we'll get into, think hard about CRPD, the Convention on the Rights of Persons With Disabilities as well, and these individualised framings of supports and of rights and then what that means for these groups of criminalised disabled people.
VERITY FIRTH: That criminalisation distress, what a powerful way to describe it. That's incredible. Liat, you're based in America, from Chicago. What did you get from this book and the challenges that people with disability face in the criminal justice system in the US?
DR LIAT BEN‑MOSHE: Thank you. Thanks for inviting me and congratulations, Linda, for a really excellent, excellent book. So unfortunately, the US, being number one in incarceration policy, really kind of led the way in terms of showing us that prison is not beneficial for people with disabilities to say the least, so people who advocate for ‑ who think that people get reformed somehow, rehabilitated, in a prison setting, I think the US for many, many, many years ‑ basically its move towards a policy of mass incarceration has really shown that ‑ to me really shown that prison is disabling, prison is maddening and people with disabilities should not be in prison.
But as Linda and other people have shown and a lot of activists, and of course Linda's book ends with this kind of call for transformative justice and disability justice ‑ have shown that it's not just people with disabilities don't get on in prison but nobody does and the way that court diversion just expands the scope of incarceration. So to me the most powerful insight from the book and really why the book is not just relevant but I would say essential to understanding what we're doing is that it highlights that often what we think of not just as imprisonment, because I think a lot of scholars already do that in cultural studies, they show us prison has failed, you know, but I think Linda, what you're showing us, what we think of as alternatives to incarceration are not. They're not alternatives and in fact they are incarceration. These two things I think are incredibly important.
To me you show it in two ways, this happens in two ways. One is that it happens either through forms of diversion that extend carcerality and control to other whether locations, like site facility, treatment facilities, group homes, but also to other techniques, like community treatment orders, and so on. So it doesn't need to be a place and in fact it's not a place.
Or it happens ‑ this to me is such a crucial point, that it happens through this kind of recapitulation to a medical diagnostic model which you show really follows the person and, in so doing, brings carcerality wherever the person goes. So in fact it's the disability label that makes and in essence carcerality is not about what the disabled person did or does which is how the criminal path began, right, through criminalisation, but then it becomes about what they are, which is disabled.
I think that that pathway has not been talked about in that way and I think the book is really path breaking in terms of showing how this medicalisation and criminalisation are in fact part of the same mechanism which you call disability‑specific lawful violence. So to me that really kind of pushed even my work to think about beyond like locations of carcerality to think about how carcerality becomes the label itself and the implications of it.
VERITY FIRTH: Wow. Claire, why do you think this book is necessary and what did you get from it?
DR CLAIRE SPIVAKOVSKY: Yes, sure. First I want to say thanks so much for this opportunity to be part of this quite amazing panel. I'm coming from the unceded lands of the Wurundjeri people of the Kulin Nation. I think for me why this book is necessary is ‑ all of Linda's work is always necessary and she's been doing a lot of this work for such a long time and this book is kind of like the culmination of so many of her fantastic ideas in one spot, so I think that for one reason is wonderful.
But also because I think one of the real beauties of Linda's work, and I think this is in part what you're saying as well, Liat, it's about talking around the roles that law plays in debilitating people with disability, that I think often we come into thinking about law and law reform, whatever that's supposed to mean, as these kind of tools for enablement and that we need to appreciate far stronger that in the case of people with disability law is often playing a debilitating role, it's often making things harder, it's making things violent, it's enabling things to happen that are not okay.
I think one of the real strengths of Linda's book is that it also tells us how that particular role that law plays in relation to people with disability can kind of expand and mask settler colonial control and violence particularly in the context of Australia. I think about this with my teaching students and the ways that over time Australia has got better at kind of hiding the terrible things that it does, so it doesn't do it in the same overt ways, but it's kind of just pushing people into different systems where for some reason we're still okay with it happening if it's under the badge of disability in the same way that we might be a little bit ashamed of it happening under a badge of first nations, and I think that's one of the real critical contributions that Linda makes through this book is seeing that in the context of a settler colonial society.
I think for me then that kind of links to this question about the challenges that people with disability face in the criminal justice system. I think often when we get asked that question, people are happy to think through or come at that kind of face value level of looking at disabling practices so we get better at sort of saying someone might need more support in a process and they are being disabled by access to justice problems, but what I think Linda's book does is it reminds us and encourages us to look again through other lenses to think about ableism and what does it mean when we have victims of sexual assault, of any form of assault, who have an intellectual disability and we automatically write it off that they would not have the capacity to speak as victims. That's ableism. That's what that looks like is that sort of automatic decisioning that this is a particular way of being.
But I think also and the real beauty of Linda's book is that sort of other elements around disability and violence and the sort of ways that diversion into these sort of disability‑specific realms means that people don't get a range of ‑ it's not just that we're dealing with people with different laws, it's that we're no longer protecting people at all from law. We're now just enabling law to do its harm and I think that's a real critical contribution that Linda makes in this book and in her other work as well.
VERITY FIRTH: Mmm, so much to think about. Liat, so this is quite a challenging book by public policy makers, isn't it, because if we accept that deinstitutionalisation has caused incarceration but we also know that now we realise also that these court diversion programs are just expanding the scope of coercive action, all the issues that you've just raised there, what is the answer, what do we need to do?
DR LIAT BEN‑MOSHE: So that's a great question and one that I think is where our work really intersects, Linda and my work, in really meaningful ways. In my work I really try to show how deinstitutionalisation did not cause incarceration and how that narrative that you start to question the policy maker ‑ how that narrative is incredibly dangerous because it leads us to a place in which people want to bring back psychiatric hospitals and institutions for people with cognitive disabilities, intellectual disabilities, as if we're oscillating between only two possibilities, you know, either complete institutionalisation or modified, you know, either in a different location or in a different way. I think what Linda's book shows is that in fact these are not the only two things and in fact this carcerality is a spectrum.
I show in a variety of ways how deinstitutionalisation did not cause the rising incarceration ‑ and people are welcome to read about it, it's freely available on my website ‑ but what I really want to anchor is the fact that neoliberalism has happened at the same time as both the rise of incarceration and deinstitutionalisation historically in the US as well as in a variety of other countries and, because of that, we are left with this narrative of people were left to their own devices and if we only bring in supports or treatment or access to services, surely we will solve the issue because people don't understand that the root causes are different. There are structural issues and in fact neoliberalism is the problem. We don't need more choices, which choice is a neoliberalist concept, of the same kind of ‑ you know, what Claire was referring to and I referred in the book of debilitating practices. We need a different framework and I feel that that's really kind of the importance here.
Just to end, in relation to the last part of your question, what then, which is really the not million dollar but maybe the 400 billion dollar question, what then? Well, it's not so much about don't we need more mental health services, more access to services. The question that I often ask, including activists, is when you say mental health, what do you mean? When you say court diversion, what are we diverting to? And in the western context, mental health usually means biomedicine, it means bio psychiatry. So when we say healthcare, what we really mean is medicalising distress, what I was saying in the beginning of our conversation, medicalising social problems, pathologising people for structural issues.
So this is again not a solution, this is another problem that we're bringing in the guise of a solution and I think the kind of unveiling of the mask that Linda does in the book is incredibly important. And yes, maybe it's not prescriptive, like the book doesn't tell us now you shall do the things 1, 2 and 4, but in fact it does something maybe even more useful, which is we need to learn what it is that we're doing and how what we're doing actually contributes to the problem itself. And what we need to do, like El was saying in the beginning, is learn from people who are mad and disabled and their stories. We keep telling people what we need and want, but the fact that it's cloaked into like this psy knowledge, as Linda shows in the book, is the problem, not the solution, and then we are not listened to, so that is one of the kind of pathways or avenues.
VERITY FIRTH: Yes. Linda, do you have anything to add to that?
DR LINDA STEELE: No, I don't think so. Liat has given a very comprehensive answer. I think if we think about really big problems in society, such as climate change or something kind of outside of the disability context, we know that we can say that it's wrong or that it shouldn't happen in a certain way without necessarily being the one source of all solutions and we know that a lot of different people, not just scholars, can kind of contribute to those solutions.
So I think that, yeah, I don't have the magical solution in this book, but ‑ I would just say as well that I acknowledge that some individual people with disability have had some positive experiences through specific court diversion orders, but I guess the viewpoint from this book is kind of the structural bigger picture of to what extent it offers a sustainable solution beyond a particular moment in time or particular legal order. But I definitely don't have ‑ I wish I did have all the answers.
VERITY FIRTH: A magic wand.
DR LINDA STEELE: Certainly, yes. Looking at what's already happening in terms of disability activism and disability justice in the US and Canada there's a lot of great stuff happening there in terms of transformative justice and disability justice already. It's already happening. It doesn't need to be reinvented.
VERITY FIRTH: There's a really good question and a timely question from Scott Avery, I'll ask that now, and I might ask you, Claire, to begin with the answer and then I'm going to go to you, El, after that. But Scott's question is the Royal Commission into the Violence, Abuse and Neglect of People with Disability makes this book particularly timely and topical. What are the most pertinent messages and recommendations from this book that they need to hear, and you can add your own pertinent messages that they need to hear as well, starting with you, Claire.
DR CLAIRE SPIVAKOVSKY: Yes, great. Thanks, Verity, and obviously thanks, Scott, for that question. That is a really good one. I think for me maybe it would probably be two key things, and again I'll preface this with in essence everyone should just read the book and hear all of it, that would be wonderful, but in the context of what we're talking about, for me kind of two elements.
So one would be recognising the connections across space and time. I think often with Royal Commissions and these kinds of formal processes there's a tendency to want to make things neat and siloed and containable and break it into we'll do it by institution, we'll do it by experience, we'll do it by population, but these things cut across space and time.
I think the real thing that this book tells us about is the kind of processes that follow people with disability changing the circumstances that they experience into carceral, regardless of where they are by reason of their disability, as in by reason of their labelling as disabled, and I think that's a really key bit for the Royal Commission to hear and understand is that we can look at these things and I think it is useful to sort of structure it sometimes this way so vertically and then horizontally and then diagonally and maybe that's how we see that there are the connections to it.
But what I fear is that we might not ultimately see the connections, that we might still end up saying in criminal justice we'll need to do this, in the community we'll need to do this, in schools we'll need to do this. But I've done work before in the context of inclusive education in mainstream government schools and to me there is a fundamental link between what are we teaching our children when we say oh, little Johnny over here needs to go sit in the back corner with the bags and needs to have someone stand over them the whole time because they can't be sort of trusted to do whatever it is by themselves. How do other kids grow up and what do they think that means? That is fundamentally connected to when you're an adult and people say you can't be trusted, someone needs to watch you at all times, someone needs to medicate you, you need to be separated. So I think those connections have to be seen.
And I think the other real thing to learn from Linda's book for the Royal Commission is that Royal Commissions tend to be thinking about what is it that law can do, law reform tends to be the tool that they fall back on to, which is great in the sense that this is a book that tells us that law can enable and can very much debilitate and disable, so can we be smarter about what we are doing with law, not more law but less, and think through what do we mean when we are trying to do these things? That's kind of the two takeaways for me.
VERITY FIRTH: El, what are the most pertinent messages for the Royal Commission to hear, and you can add your own too.
EL GIBBS: Everything Claire said for a start ‑ thanks heaps, Scott, for the question. I've been listening with an enormous amount of interest and heartbreak at the hearing this week which is about First Nations peoples' experiences with the child protection system. I think the Disability Royal Commission needs to acknowledge the disabled people, we're experts on our lives ‑ and all disabled people, not just nice white ladies like me.
So I think that it's incredibly important that disabled people ‑ our experiences, our lives, our expertise are forefront and that Aboriginal and Torres Strait Islander people with disability, they are experts on their own lives and what they are saying this week is that the legacy of Australia's bloody history is incredibly important with understanding what's happening and that that needs to be forefronted in how we're talking about how disability is understood.
So one of the things we've heard this week has been the unpicking of a bureaucratic form used by child protection system in one state and by the time they'd got through just one section of one form that is one of eight tools used to decide whether they remove a child, it was obvious even to the bureaucrat who is in the witness stand how biassed that tool is against Aboriginal people with disability in particular and that's leading to 43% of the kids who are in so‑called care are Aboriginal people and that this is getting worse not better. I think that this interconnection of the systems and interconnection of how these things work in people's lives and the level of overt intervention and control and the lack of listening to Aboriginal control organisations and Aboriginal people is extraordinarily important.
VERITY FIRTH: Mmm. I'm going to ask Vanamali Hermans' question too. That flows nicely. The audience are doing brilliantly today. I needed to invent no questions of my own. Vanamali Hermans asked the question: "What implications does this work specifically have for disabled blackfellas? I'm thinking of both Nathan Reynolds, who was killed by neglect in prison after an asthma attack, and David Dungay, who was murdered by screws for eating a packet of biscuits to manage his diabetes." Liat, maybe this is relevant to your concept of race‑ability in [decarcerating] disability. Do you want to lead off, Liat, and then we may get comments from other panellists as well.
DR LIAT BEN‑MOSHE: Great, thank you. You get an A for reading the book and engaging with the concept. I was mentioning to Linda earlier that we also read her work two weeks ago in my class.
The reason why I'm saying all this is because, yes, absolutely, I think that ‑ the reason to me why I felt it was important to talk about race‑ability is because the two are intimately connected and to me it makes no sense to talk about one without the other, at least in the American west‑based context because of the way in regards to our conversation ‑ the way that medicalisation and criminalisation and racialisation are conflated into each other. So in the cases that Linda brings in the book you can really see that works in relation to race or indigeneity.
The reason why I think race is a more kind of visible or profound thing, especially in the US context ‑ we were chatting a little bit earlier about this today, but I think the US completely refuses to acknowledge settler colonialism as a thing and unfortunately a lot of activists and scholars fall into kind of that abyss, but also there is no denying that in the US the hyper incarceration that happens happens in relation to race and ethnicity much more so.
So this is not to say that these are not lenses that are in the book, they are, but because of the context, I do think that the kind of emphasis on settler colonialism is absolutely ‑ it's absolutely justified to the context and I also think that the two are incredibly linked, whether it's through the discussion that Linda gives in the book of biopower, of eugenics legacies ‑ I mean, eugenics is a perfect example of the kind of tie‑in between the idea of degeneracy as they relate to western notions, as they relate to racial notions, as they relate to ableist notions. So again, one cannot be untied from the other.
VERITY FIRTH: Linda, do you want to add to that?
DR LINDA STEELE: Yes, I guess just to say that, yes, disability and indigeneity are kind of interrelated in terms of how medicalised disability is presented both abstractly in terms of eugenics, so these kind of historical ideas that brought together a whole lot of circumstances or categories that we might now see as quite distinct in terms of, for example, antidiscrimination law or identity politics but actually historically were quite interconnected in terms of Australian nation building and the development of different institutions incarceration, but also in a more kind of material or physical sense. And this is really brought out in Scott Avery's book Culture is Inclusion, the actual physical emotional disablement was central to ‑ the material disablement and labelling of people as disabled was central to dispossession and displacement of, at least in Australia, First Nations people.
Sorry, I had one other thought. So they kind of all come together in a way which is kind of masked in the criminal justice context because often we see the solution for Indigenous people with disabilities being this kind of more disability support services or Indigenous friendly disability support services that are not, as I think El said, controlled by communities or necessarily reflecting their understandings of distress or disability with trauma.
VERITY FIRTH: Claire and El, do you want to add anything to that? It's been beautifully answered by both. Anthony Matuzelski has a good follow‑on from that as well. Thalia is saying, "To add, do we need to draw a line between disability (biomedical) and structural/colonial issues of grief and trauma? Are there problems when disability becomes a catch all? This is critiqued by First Nations Professor Pat Dudgeon, who discusses models of social and cultural wellbeing and healing." El, do you want to say anything about that?
EL GIBBS: Yes, I think this week First Peoples Disability Network has said exactly this in relation to the Disability Royal Commission hearings that this legacy of grief and trauma from settler colonialism is vital to understanding how so many Aboriginal children with disability are being removed and that these things aren't separate and they can't be thought of as separate from what has come before, both in terms of the legacy of the structural violence that's been done to these children, but also in terms of the grief and the generational grief and trauma, and I think that that's been expressed extremely clearly at the Royal Commission hearing and First Peoples Disability Network has talked about this in terms of how vital this is to understanding what is happening for Aboriginal people with disability in Australia at the moment, particularly in engagement and the violence inflicted by the state. So I think, yes, it's absolutely true.
VERITY FIRTH: Does anyone else have comments they want to add to Thalia's point?
DR LIAT BEN‑MOSHE: I just want to add kind of really quickly, a few weeks ago in my class we read Dian Million's work who talks about exactly the question Thalia was referring to and it was so interesting that in the discussion in class the students kept talking about colonial PTSD and colonial trauma and I kept kind of pushing them, "Okay, but can we talk about this without the word PTSD?"
Even in the discussion about the critique of it, they all fell back on this biomedical understanding of yes, a very particular sense and affect and implications but even in our critiques we kind of revert back to these mechanisms. So it's not so much an answer, but just to say they are so, so tied in a kind of western medicalising colonial notions of what grief is, what trauma is that we can't even get out of those words and those frameworks.
VERITY FIRTH: Mmm. As I'm listening to you all speak, it's almost more of a political question that I want to ask. There's some other good questions down the side, so I'll ask a few more of them, but I'll intervene with this one, which is so Claire was sort of talking about the siloed nature of policy making, the siloed nature of government agencies and how none of them speak together properly, you know, to paraphrase, and listening to all of you now talk about I suppose different ‑ my question is essentially this: how do we build the connection or forge alliances with other anti oppression movements, because really what you're all talking about is that we need to all be merging these concepts, both in terms of solutions but also in terms of the movements, the anti oppression movements that are happening around the world. Does anyone have any views on how we do that?
EL GIBBS: Look, I'll have a crack. So I think for me one of the things that has been really amazing about this year apart from ‑ through the accessibility via COVID is I've been able to kind of participate in a bunch of disability justice frameworks conversations that are going on around the world and I think that offers for me a huge amount of listening and learning about what is possible and really creative imaginings about what disabled people are thinking about that are beyond the kind of construction around rights that a lot of our kind of individualised notions around inclusion or that kind of stuff. And I know that there are some of those conversations in Australia, but I also think that one of the things for me out of this year has been that disabled people are doing incredible stuff and that we have shown a great amount of resilience, a great amount of strength through this year and being able to help each other and support each other as communities, particularly getting into places that are closed and being able to support our colleagues and our friends who are having a deeply crap time.
But I think that it is time, to be honest, in Australia for other movements to work with us and don't talk about us as the vulnerables and as lots of people have heard me rant on about, if I hear another essay about care economy, it doesn't actually talk about the subject of that care or talks about us who experience being cared for and how we understand that ‑ I think it's really important that we have not only a seat at the table, as we often say, but we are leaders in a lot of these conversations because disabled people know lots of stuff about how we build a better world and how we thrive in a world that often doesn't really want us and doesn't make any room for us.
VERITY FIRTH: I think that's a really strong point about care economy and just absolutely absence of voice from people who are receiving those services. How do we connect ‑ how do we make all these anti oppression movements speak to each other and form a sense of solidarity and understanding?
DR LINDA STEELE: Could I say something? It's slightly off track from the criminal justice context, but I've seen a lot of great success in the past couple of years in relation to the feminist movement in terms of reproductive justice around decriminalisation of abortion, et cetera, but we're not necessarily seeing the experiences of women and girls with disabilities in those particular movements. So decriminalising abortion is great if you have the choice to seek an abortion, but if you actually have removed from you your ability to reproduce through sterilisation, then that isn't even getting you to that point of being able to access those feminist successes.
So I think ‑ and it kind of goes to the idea of looking across laws. If we can get mainstream movements like the feminist movement to think about greater diversity within that population and what are the particular legal dynamics that impact on different women's experiences, then that might also be of assistance, and also things like around coercive control and domestic violence context. I know there's a lot of debate about whether that's even an appropriate approach to criminalised coercive control, but the definition of coercive control could easily ‑ well, the term coercive control could easily be describing the entire legal framework for people with disability around diversion or guardianship law or mental health law and yet it's being defined in a very narrow way that reflects only a certain population's experiences of coercion. So just kind of broadening and deepening an understanding of the diversity of experiences of violence and control and choice in those mainstream movements would be really helpful I think.
VERITY FIRTH: I think that's a really good answer. Now, I'm mindful of time, but there is one more question I would like to ask because there is a voting for it and it is pertinent to some of the issues we were raising, so I'll quickly ask it. Jacqueline Wilson talks about the overrepresentation of medicated children in state care and many are on a track to prison, either juvenile or adult. There needs to be better record‑keeping systems that acknowledge these links early on in state care for children who are pathologised early on into a carceral medical model. Can the panel comment on this? Would someone like to volunteer to go first?
DR LINDA STEELE: I'll quickly say one thing that came out in the research I did looking at the MHDCD data set developed by researchers at UNSW was there is actually a lot of recording done of these kinds of interventions or inaction and part of the problem is that that is not so much that it's not always recorded, it's actually that it's seen as okay, so it's just seen as being routine or matter of fact or natural that certain interventions or certain treatment or certain inaction or irresponsibility or lack of accountability occurs.
So I think part of it is obviously making sure these things are recorded, but it's actually what do we do with that data or who has access to that information or how is that presented to the public in a transparent way which is part of the problem and to what extent does the public care that this is actually going on, because we actually know a lot that this is happening and the Royal Commission hearings show that part of the problem is that a lot of people simply don't care or think that it's okay, including those in positions of responsibility.
VERITY FIRTH: What I'm going to do is ‑ there's so many good questions, seriously. We have a very well‑educated, expert number of people watching here today, so thank you for your really good questions. I might actually end on Simon's question because I think it's quite a nice way to end and you can take it a bit more broadly as well. Simon is asking would a restorative inquiry model instead of a Royal Commission perhaps provide a more thorough and holistic look at the issues that have been mentioned today and provide a community‑informed direction for change, and the reason I ask that is I think it might be nice to end on a community‑informed direction for change. He's explicitly talking about a restorative inquiry model, but it may be in your closing comments you could think about how do we drive those connections, whether they be political or movement connections or connections between researchers, policy makers, thinkers, legal jurists, for a holistic look at issues and I suppose, most importantly, a community‑led holistic look at the issues. So El, I'm going to kick off with you. You're community. What do you reckon, and this is your last hoorah.
EL GIBBS: Sure. So I'm ‑ can we have all things kind of person so can we have both please. One of the reasons we've argued for such a long time for a Royal Commission is because it has the powers that it does. It can open doors, shine light, as we've said over the years, it can demand documents, it can confront bureaucrats as it was doing yesterday afternoon, it can get documents, it can do all of that kind of stuff and I think that's really important. It can pull all of this together in a way that we haven't done before.
But I do think that there are other mechanisms and other ways that we can have change. I don't think it is the only tool that we have and I do think that there are ways that community can lead some of these methods to have a think about what would a tool led by people with intellectual disability, for example, look like and what would a tool led by people who are the exact criminalised disabled people that Linda is talking about. I'm really conscious of their absence in this conversation and the importance of them for driving what happens next and for being integral in how we solve carcerality being used and addressing, as I started to talk about, social determinants of disability which are so much part of the criminalisation of disability for some communities of people with disability.
VERITY FIRTH: Claire?
DR CLAIRE SPIVAKOVSKY: Yes, I would absolutely second that point from El. I think often ‑ and this is part of the issue I think that we think in these binaries of it's this or it's this, it's prison or it's community, it's institutionalisation or deinstitutionalisation, it's a Royal Commission that looks like this or it's some other thing, but why can't we do all and particularly for trying to look across those kinds of silos that have come up?
I also really want to second that sort of point around the importance of it being led by the range of communities that have experiences of being subject to disableist practices and that might require various supports as well, particularly for people with intellectual disability that I think get overlooked many, many times in this space. I think it is one of the benefits of the Royal Commission.
But getting to Simon's question about the restorative inquiry model as well, one of the benefits would be to have other language for harm that we're talking about here. I think the Royal Commission is great in being able to say this thing that everyone recognises is violence has happened and that's not okay. I think it's getting better at saying this stuff that all the disabled people and disabled peoples organisations have said is violence is happening and that's not okay. But I think if we actually can talk about it in harm and in these other sort of dialogues around what violence and harm is rather than just what law and crime and law breaking is ‑ I think we will be able to get a better answer to a range of things and actually have real progress here.
VERITY FIRTH: Liat?
DR LIAT BEN‑MOSHE: So I have no kind of context to this question. We don't have royal ‑ we also don't have commissions, people don't care what they say regardless. We just had an election and we still have the same President for some reason, I don't know.
Anyway, so this is like a different context, but what I would just suggest for people who are here and who are interested is to look at a lot that has been done and written about the difference between restorative justice and transformative justice and I think this is not a linguistic difference because restoration is about one thing and it could also be about healing for sure, but restoration is more of a model of like one to one. But when we talk about transformative justice, really we're talking about the structural and we think about community as something larger. So we don't have a lot of time, but there's much out there. People can even go and look at transformharm.org, Mariame Kaba's website, and learn about that difference which is also how the book ends.
VERITY FIRTH: Excellent. Thank you, Liat. Last but not least Linda, the star of the day.
DR LINDA STEELE: Thank you. Yeah, I guess the main thing I would add which is a bit different perhaps is the importance of any commission or inquiry I guess recognising the very long‑term and historical nature of these harms and providing opportunities for accountability and redress and transformation that are not always individual but engage the collective and also engage the broader community in addressing these issues.
I just wanted to quickly finish off by thanking some people, if that's okay. I just wanted to thank the organisers, Fiona Versey and Nella Soeterboek at the UTS Centre for Social Justice and Inclusion and Sarah, Angus and Verity for supporting the event. I also wanted to thank Claire Spivakovsky, El Gibbs and Liat Ben‑Moshe for their generous engagement with the book and accepting my invitation to be involved.
I'd like to thank the UTS Law Faculty management for supporting me in my position and so many wonderful colleagues at UTS and elsewhere who provided feedback on parts of the book. Thank you to Colin Perrin at Routledge and the editors, Sarah Lamble, Sarah Keenan and Davina Cooper, for their feedback and guidance during the writing of the book and to my PhD supervisors, Ali Luffman and Leanne.
Thank you to my family Evan, Audrey, Jemima and my parents for their support and patience during the book and thank you to my colleagues and friends who have ‑ this is the last one ‑ come along today to listen and Zoom in. And also to those of you who I haven't met before, thank you for your interest in the book and I invite and encourage you to get in touch if there was any reflections or queries you had. I'm always happy to engage with the book or issues around it as part of a bigger conversation. So thank you.
VERITY FIRTH: Wonderful. Thank you, Linda. Thank you again to our panellists. That was a really, really good‑quality chat. I found that fascinating, so thank you for giving up your time today. And thank you to everyone who joined us.
We're a tiny bit over time, but you can have lunch, it's 1.05. But thank you very much for being part of this today and congratulations to Linda for her book. Cheers. See you all.
(End of webinar)
If you are interested in hearing about future events in this series, please contact events.socialjustice@uts.edu.au.
What we think of as alternatives to incarceration are not. They're not alternatives and in fact they are incarceration. – Dr Liat Ben-Moshe
I think that it is time, to be honest, in Australia for other movements to work with us and don't talk about us as 'the vulnerables' – El Gibbs
Speakers
Dr Linda Steele is a socio-legal researcher working at the intersections of disability, law and social justice. Her research is directed towards thinking more creatively and critically about how we engage with law in order to achieve social justice for the disability community.
Dr Liat Ben-Moshe is an Assistant Professor of Criminology, Law and Justice at the University of Illinois at Chicago. She is an activist-scholar working at the intersection of incarceration, abolition and disability/madness.
El Gibbs is the Director, Media and Communications for People with Disability Australia. She is also an award-winning writer with a focus on disability and social issues, published widely.
Dr Claire Spivakovsky is a Senior Lecturer in Criminology at the University of Melbourne. Much of Claire's work focuses on the use of violent, restrictive and coercive practices in community settings such as group homes and schools.
This launch was also supported by the UTS Faculty of Law and UTS Disability Research Network.