Indigenous Young People with Foetal Alcohol Spectrum Disorders: The Convention on the Rights of Persons with Disabilities and Reform to the Law Governing Fitness to Stand Trial in Western Australia

Abstract

This article examines the place of the Convention on the Rights of Persons with Disabilities in relation to reform of Western Australian law governing fitness to stand trial, with a particular focus on Indigenous youth with Foetal Alcohol Spectrum Disorders (FASD). This article considers whether and how the Convention might be relied upon to improve outcomes for Indigenous youth with FASD, particularly through its promotion of a social model of disability. We argue that the social model of disability embodied in the Convention can only take us so far, and that many of the aspirations of the Convention regarding disability neutrality may, in fact, be counterproductive for Indigenous youth, rendering culture invisible and denying the colonial underpinnings of the disability in Indigenous communities. The Convention must be read 'in tension' with the United Nations Declaration on the Rights of Indigenous Peoples and with Indigenous knowledge. We argue that an appropriate response requires decolonising the justice system to break down the barriers that prevent Indigenous young people with FASD from participating on an equal basis. To do so, the role of colonisation in the production of impairment and disability must be acknowledged, and law reform must facilitate community-owned solutions - placing Indigenous organisations and practices at the centre, rather than the periphery, of intervention.