MHDCD Project

7.5 The use of Section 32 as diversion for people with complex needs in the NSW Legal System

A project addressing the use of Section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) for individulas in the MHDCD Dataset was undertaken by Ms Linda Steele, Assoc Prof Leanne Dowse and Mr Julian Trofimovs. The resulting report ‘Section 32: A Report on the Human Service and Criminal Justice Pathways of People Diagnosed with Mental Health Disorder and Cognitive Disability in the Criminal Justice System Who Have Received Orders Pursuant to Section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW)’[2] explored the patterns of the use of orders made pursuant to s 32 for individuals diagnosed with mental health disorder and cognitive disability who come before the Children’s and Local Courts in NSW as a result of an offence, and their demographic characteristics and longitudinal human service and criminal justice pathways. The study found relatively low numbers of section 32 orders as a proportion of convictions for those in the cohort overall, with slightly higher usage for Indigenous males. Indigenous Australians who have been the subject of section 32 orders were shown to have more complex diagnoses, higher prevalence of ABI, higher levels of criminalisation and marginalisation and to have limited access to disability services when compared to non-Indigenous Australians in the section 32 cohort. Significantly, the study identified that receiving a s 32 order may not mean an end to criminalisation or incarceration of an individual over the life course, suggesting its limited utility in addressing long term and multilayered criminalisation and early and ongoing social marginalisation. This highlights the need for ongoing attention to non-criminal legal and systemic approaches to safeguarding this group from lifelong enmeshment in the CJS.

A PhD thesis submitted in 2014 by Linda Steele under the supervision of Assoc Professor Leanne Dowse and Assoc Prof Arlie Loughnan (University of Sydney) “Disability at the Margins: Diversion, Cognitive Impairment and the Criminal Law” expanded the analysis of the use of s 32. Combining empirical analysis of the MHDCD Dataset with other empirical data and case studies, the thesis is an interdisciplinary theoretical and empirical analysis of this diversionary mechanism whose central argument is that section 32 enables the criminal legal regulation of individuals with cognitive impairment who are otherwise beyond such regulation because they exceed the limits of trial, conviction and sentence. The thesis identifies a number of effects of this regulation: that it furthers the criminalisation of individuals with cognitive impairment in the criminal justice system, marginalises the social, political, historical, material and institutional dimensions of the identities, circumstances and criminal justice pathways of individuals with cognitive impairment, promotes associations between cognitive impairment and deviance, risk and the need for management, and contributes to the ordering of the criminal law jurisdiction. The thesis’s analysis suggests that while diversion and cognitive impairment currently sit at the margins of critical legal scholarship, the issue should be located at the core of critical and political engagements with the criminal law.



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