M2 - Learner Manual

Walama Court

The Aboriginal Legal Service (NSW/ACT) Limited (‘ALS’) welcomes the wide-ranging recommendations of the Special Commission of Inquiry's Report into the Drug ‘Ice’, saying only a ‘paradigm shift’ away from a criminal justice lens to a health-based response will help address the devastation caused by drugs.

Importantly, the Inquiry found that NSW Government action must be grounded in an ‘understanding of Aboriginal definitions of health and wellbeing; the importance of family, community, culture and Country to Aboriginal health and wellbeing; the impacts of colonisation and racism on the health of Aboriginal people; the effects of trauma experienced personally, intergenerationally and culturally; the disproportionate effects of socioeconomic disadvantage; and the principles of self-determination.

Chief Executive Officer Karly Warner said the ALS had long-campaigned for many of the Inquiry’s 109 recommendations, such as the expansion of the highly-successful Youth Koori Court into regional areas of NSW and the implementation of the Walama Court proposal.

“We welcome the Inquiry’s acknowledgement of the important role of culturally-specific courts in providing holistic and wraparound support for our communities. We know that courts that involve Elders, Aboriginal community controlled organisations and culturally-appropriate members, provide the most effective support for our mob. We call on the NSW Government to act without delay to establish a Walama Court in NSW – an Aboriginal-specific court that can deal with drug and alcohol matters.”

“The ALS is pleased that the Inquiry has acknowledged the need for a health-focused response to address the use of ‘Ice’.

“Community-designed and community-led diversionary programs, together with advice from drug and alcohol experts, will address the underlying issues that result in substance abuse and provide much-needed support and counselling to ensure Aboriginal people and their families get the help they need.

“The greater use of culturally-specific courts like the Youth Koori Court and Walama Court, as well as a Family Drug Treatment Court, would also allow people to receive treatment in the community, reducing the risk of them getting stuck in the quicksand of the justice system and recognising the crucial role that connection with Aboriginal culture plays in healing.”

Ms Warner said the ALS supports calls for greater funding for drug and alcohol services and rehabilitation programs for Aboriginal people.

“The NSW Government must act without delay to implement the Inquiry’s important recommendations to ensure there is greater prevention, diversion and rehabilitation initiatives to support our communities, particularly in regional areas.”

Sourced on 4/8/22: https://www.alsnswact.org.au/als_welcomes_renewed_calls_for_walama_court_and_greater_support_for_communities

 

The District Court of NSW has published a Walama List Fact Sheet. Extracts appear below:

WHAT IS WALAMA?

‘Walama’ is a word from the Dharug language meaning ‘come back’ or return.  In the context of the Walama List, it is a coming back to identity, community, culture, and a healthy, crime-free life. The Walama List will provide a therapeutic and holistic approach to sentencing eligible Aboriginal and Torres Strait Islander offenders. Walama will achieve this by working with Elders and respected community members, government, and non-government services to address underlying needs and risk factors related to offending behaviour. The Walama List aims to reduce re-offending, keep communities safe and reduce the overrepresentation of Aboriginal and Torres Strait Islander peoples in the criminal justice system.

WALAMA LIST OBJECTIVES

• Reduce the risk factors related to re-offending.
• Reduce the rate of breaches of court orders.
• Reduce the overrepresentation of Aboriginal and Torres Strait Islander persons in custody in NSW.
• Increase community participation and confidence in the criminal justice system; and
• Increase compliance with court orders.
• Facilitate a better understanding of any underlying issues which may increase the likelihood of re-offending.

WHO CAN PARTICIPATE IN WALAMA LIST?

The Walama List Pilot will start in the NSW District Court at the Downing Centre in 2022. It will be a sentencing court only for adult Aboriginal and Torres Strait Islander offenders with matters before the NSW District Court. Eligibility for the Walama List requires that the offender:

• has sentence proceedings listed in the NSW District Court Downing Centre
• is descended from an Aboriginal person or Torres Strait Islander, identifies as an Aboriginal person or Torres Strait Islander, and is accepted as such by the relevant community
• has pleaded guilty to the offence(s)
• has signed an Agreed Statement of Facts on Sentence; and
• consents to having their matters dealt with in the Walama List.

WHAT HAPPENS IN THE WALAMA LIST?

Walama List proceedings will involve Elders and other Respected Persons (ERPs) in sentence proceedings and is a critical component of a community-led sentencing approach. The Walama List is set up by a Practice Note of the NSW District Court. The ERPs assist in the Walama List by sitting with the presiding Judge during a Sentencing Conversation and Case Plan Conversations and providing advice regarding the background of the offender and the possible reasons for the offending behaviour. The ERPs may be required to explain relevant kinship connections of the offender, how a particular crime has affected the Aboriginal community and advice on cultural practices, protocols, and perspectives relevant to sentencing. The ERPs symbolise the importance of Aboriginal and Torres Strait Islander cultural authority in decision-making and respect for the judicial process in sentencing.

ROLE OF ELDERS AND RESPECTED COMMUNITY PERSONS (ERP’S)

ERP’s of the Walama List give honest and fearless advice to the Walama List Judge, informed by their cultural knowledge, wisdom, and experiences. They advise the Judge on cultural issues relating to the offender and their offending behaviour. The voices of ERP’s are a powerful cultural aspect of the Walama List and their participation sends a clear message to the offender that the offences committed are not condoned by either Aboriginal and Torres Strait Islander or non-Aboriginal communities. The ERP’s will provide valuable insight to the sentencing proceedings by informing the court about cultural, historical, and social issues relating to the offender’s background and community in a culturally safe way.

Sourced on 4/8/22: https://www.aboriginalaffairs.nsw.gov.au/media/website_pages/our-agency/news/pilot-of-specialist-approach-for-sentencing-aboriginal-offenders/Walama-List-Fact-Sheet.pdf

The Mental Health Coordinating Council has published a Mental Health Rights Manual. Extracts from Chapter 8 Section F: People with mental health conditions who have alcohol and other drug issues, are provided below:

8F.2.2: Alcohol and drug support services for people in contact with the criminal justice system

Services specifically for people with alcohol and drug issues in contact with the criminal justice system include:

• The Connections Project – provides post-release support to people leaving prison in NSW who have a history of problematic drug use, many of whom also experience mental health issues. This is available in all Correctional Centres in NSW with follow-up provided anywhere is NSW. If you are currently in prison and are interested in joining the Connections Project or would like to get more information about it, you can talk to a nurse in the clinic in your correctional centre.
• Guthrie House: is a community-based residential rehabilitation and transition service for women who are involved in the NSW criminal justice system. Call 02 9564 5977 from 8:00am to 4:00pm from Monday to Friday.
• Justice Health and Forensic Mental Health Network: provides government health care to adults and young people in contact with the forensic mental health and criminal justice systems, in community, inpatient and custodial settings.

8F.3: Involuntary treatment for alcohol and other drug problems

Consent is needed for treatment for alcohol and other drug (AoD) issues in the same as for any other medical condition. Treatment can usually only be given with the informed consent of the person getting the treatment. This means that the treatment must be voluntary.

However, there are laws that allow involuntary treatment for AoD problems in NSW:

• You can be treated without your consent under the Drug and Alcohol Treatment Act 2007 (NSW); and
• If you are charged with a serious criminal offence, you can also be ordered into compulsory treatment by the NSW Drug Court under the Drug Court Act 1998 (NSW).

8F.3.1: Involuntary Drug and Alcohol Treatment Program

The Drug and Alcohol Treatment Act 2007 (NSW) is the law that provides for NSW Health’s Involuntary Drug and Alcohol Treatment Program (IDAT).

The IDAT Program is a AoD treatment program that provides medically supervised withdrawal, rehabilitation and supportive interventions for patients with severe substance dependence. The IDAT Program provides short term care to protect the health and safety of people with severe substance dependence who have experienced, or are at risk of, serious harm and whose decision making capacity is considered to be compromised due to their substance use. It includes an involuntary supervised withdrawal component. Participants are usually referred through their local health district.

Under the IDAT Program, an Accredited Medical Practitioner at the IDAT Facility can issue a Dependency Certificate that means the person who is subject to the certificate can be detained for up to twenty eight (28) days in the first instance as an involuntary patient. There is an option to extend the Dependency Certificate for up to a total treatment period of three (3) months in extreme circumstances where withdrawal, stabilisation and discharge planning may take longer. The IDAT Program also provides three (3) to six (6) months of voluntary community-based treatment and support following discharge.

An Accredited Medical Practitioner from one of the IDAT units conducts an assessment, and if all the eligibility criteria are met, will issue the person with a Dependency Certificate. If a Dependency certificate is issued, and a bed is available, the person can be admitted for treatment. Local health districts can arrange transportation to the treatment unit.

Within seven (7) days of admission, the Dependency Certificate is reviewed by a magistrate in an informal hearing usually at the treatment unit. Legal aid is available through duty solicitors for the reviews held before the visiting magistrate. Contact Law Access on 1300 888 529* for more information.

At the end of the involuntary treatment, the patient is discharged and transitioned to community care. If you are unhappy with the visiting magistrate’s decision, you can apply to the NSW Civil and Administrative Tribunal (NCAT) for a review of the decision. For more information about the NCAT, click here.

The Drug and Alcohol Treatment Act 2007 (NSW) also allows you to name a person as your Primary Carer so that they will have access to certain information about you while you are detained under this Act. For example, the primary carer must be notified within twenty-four (24) hours after a Dependency Certificate has been issued by an Accredited Medical Practitioner. They will be noted as soon as possible if you are absent from the treatment centre without permission or are discharged. As far as possible, they should be consulted about your discharge plans.

If you are considering a referral to IDAT and you require additional information, please contact:

• Alcohol and Drug Information Service at (02) 9361 8000 or 1800 422 599* (outside Sydney); or
• Your Local Health District Drug and Alcohol Centralised Intake contact number to discuss with the local Involuntary Treatment Liaison Officer.

Contact numbers for the two state-wide IDAT programs are:

• Herbert Street Clinic, Royal North Shore Hospital: 02 9463 2533.
• Lachlan IDAT Unit, Bloomfield Hospital: 02 6369 7700.

You can search for the right contact by following this here, alternatively click here to find out more information about the IDAT Program.

*Mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.

Independent Official Visitors have been appointed to inspect IDAT facilities regularly. They have the same role as Official Visitors under the Mental Health Act 2007 (NSW). This means that you can contact an Official Visitor if you have concerns about your care and treatment as an involuntary patient as well as to make complaints and concerns about the physical conditions at the IDAT Facility.

To contact the Official Visitors Program:

Postal address: Locked Bag 5016 GLADESVILLE NSW 1675
Telephone: (02) 8876 6301
Website: www.ovmh.nsw.gov.au

8F.4: Diversionary programs for people with alcohol and other drug problems

There are programs available for people with alcohol and other drug issues who face less serious criminal charges. These are usually called ‘diversionary programs’ because they are designed to ‘divert’ a person from the criminal justice system and to provide treatment for problems linked with alcohol and other drug issues rather than punishment.

Diversionary programs are voluntary in that they are not carried out with you being held behind locked doors in an institution, such as prison or a psychiatric hospital. However, there may still be serious consequences if you fail to finish or cooperate in a program. If you fail to finish or cooperate you are likely to be taken back to court to have the original offence dealt with again. It is best to get legal advice before you agree to participating in a diversionary program.

This section provides information about Drug Court programs and the Magistrates Early Referral into Treatment (MERIT).

Other examples of diversionary programs include the Extra Offender Management Services (EOMS), Cannabis Cautioning Scheme (CCS); and Circle Sentencing.

Click here to find information about the diversionary programs that may be available to you.

There is also the NSW Youth Drug and Alcohol Court (YDAC), which aims to reduce re-offending by young people who have become entrenched in the criminal justice system, by diverting them into diversionary programs to overcome their drug and alcohol problem.

8F.4.1: Drug Court Programs

In some instances, the Local or District Court may refer to you to the Drug Court to consider if you are eligible for the Drug Court program.

The Drug Court of NSW aims to address underlying drug dependency which has resulted in criminal offending behaviour. The Drug Court can require an offender to participate in an ongoing rehabilitation program, under court supervision instead of imposing a punishment. The relevant law is the Drug Court Act 1998 (NSW).

To be eligible for the Drug Court program, a person must:

• be likely to be sentenced to full-time imprisonment;
• have indicated they will plead guilty to the offence;
• be dependent on the use of illicit drugs;
• live within certain catchment areas and referred by certain courts;
• be eighteen (18) years of age or over; and
• be willing to participate.

A person is not eligible if they:

• are charged with an offence involving violent conduct;
• are charged with a sexual offence or some types of drug offence; and
• are experiencing a mental condition that could prevent or restrict participation in the program.

People with a history of violent or dangerous behaviour may be ineligible for participation.

If the Drug Court finds that the offender is not eligible for drug court programs, the person will be referred back to the Local or District Court.

If the Drug Court decides that an applicant is eligible for a residential Drug Court program, the person will go into a ballot. If that person is chosen from the ballot, they will be remanded in custody for detoxification and assessment. This takes place at the Drug Court Unit in Silverwater Complex, which is separate from inmates in the main gaol. The initial assessment takes up to two (2) weeks and includes general and mental health reviews conducted by Justice Health. Each person’s Drug Court program is tailored to their specific needs.

The offender must agree to the program of treatment and conditions proposed by the court. The Drug Court imposes a penalty for the offence, but the sentence is immediately suspended while the person is on the Drug Court program. If the offender completes the program, that will be taken into account in determining the final sentence, such as a good behaviour bond. The final sentence cannot be higher than the original, suspended sentence.

During the Drug Court program, the offender in custody may have the opportunity of receiving a community services order and engaging in work in the community. The offender may live at an approved residential address (for example the offender’s home) or at a residential rehabilitation facility (for example, Salvation Army William Booth House in Sydney). The length of the program depends on the person’s progress.

For more information about the Drug Court and the three phases of the Drug Court program click here.

8F.4.2: Magistrates Early Referral into Treatment

The Magistrates Early Referral into Treatment (MERIT) program is an alcohol and drug program available to eligible defendants who appear at certain Local Courts. To be considered eligible for MERIT, a defendant must:

• be aged eighteen (18) years old or over;
• be eligible for bail or not require bail consideration;
• have a treatable drug/alcohol problem for which there is appropriate treatment available;
• live in a certain catchment area (or have sufficient connection to the area, for example, have full-time employment in the area); and
• voluntarily consent to undertake the MERIT program.

The defendant must not be charged with sexual, certain serious offences or have such offences pending before the court.

The MERIT program allows defendants to focus on treating their alcohol or drug issue separate from their legal matters. An agreement to become involved is not an admission of guilt for the offence(s) charged. Treatment generally takes place before any pleas are made and the court matters are adjourned (delayed) until the completion of the program.

The program normally lasts three (3) months. Treatments will depend on the circumstances of each participant, and may include:

• detoxification
• weekly individual counselling
• methadone and other medication
• residential rehabilitation; and
• case management and support.

During the bail period, participants will:

• have the support and guidance of their MERIT caseworker;
• participate in the treatment program as agreed to with their caseworker;
• comply with all conditions of bail and the MERIT treatment plan; and
• appear before the Magistrate during this period to provide an update on treatment progress.

MERIT caseworkers will report any incidents of non-compliance with the treatment plan to the Magistrate. The Magistrate may remove the defendant from the program. If removed from MERIT, the defendant goes back to court for a plea or hearing. The defendant will not have any extra charges specifically because they did not comply with the treatment program.

After the treatment program is completed, the defendant will have a hearing or sentencing of the outstanding court matter(s):

• the Magistrate hearing the case will be provided with a report from the MERIT Team;
• the report will give information on the client’s participation in treatment and any further treatment recommendations; and
• where possible, a detailed aftercare program will assist participants to continue in their rehabilitation.

The sentence of the participant after successful completion of MERIT should reflect successful completion of MERIT and any recommendations for further treatment.

For more information about MERIT, click here.

8F.5: Alcohol and Drug Treatment in custody

Justice Health and Forensic Mental Health Network provides treatment and support for people in custody with alcohol and drug (AoD) issues.

For example, the Adolescent Community and Court Team – works with other government agencies and Area Child Adolescent Community Mental Health Services to divert young people from custody.

For services specifically for people with AoD issues in contact with the criminal justice system, click here.

8F.5.1: Intensive Drug and Alcohol Treatment Program

Intensive Drug and Alcohol Treatment Program (IDATP) is a residential (live in) program at the John Morony Correctional Centre for male and female offenders who have drug and/or alcohol problems linked to their offending behaviour.

Eligible prisoners can be referred to IDATP by a variety of sources that include active recruitment by program staff, the Probation and Parole Service, other CSNSW staff and self- referrals. Recommendations can also be made by the court at the time of sentencing and acted on by corrections staff after imprisonment. In addition to meeting the eligibility criteria, the IDAPT team assess whether an offender is suitable for the program. This assessment comprises an interview that considers such things as the drug use and offending history, physical and mental health, cognitive functioning, drug treatment history, institutional security or safety alerts and medical needs.

Participation in IDATP is voluntary and offenders can refuse a referral or refuse to be placed on the program. Once an offender has commenced the program they can also discharge themselves at any time.

It is a group program which can take six (6) to eight (8) months to complete, depending on each person’s progress.

IDATP aims to:

• help offenders gain an understanding of their substance use and offending behaviour;
• reduce the likelihood of re-offending; and
• give offenders the skills, resources and support needed to return to the community, free from alcohol and/or drug-free and offending behaviour.

The program includes a range of therapeutic, health, education, vocational (job) and pre-release interventions aimed at addressing substance dependence, offending behaviour and reintegration. It is offered to offenders at the Outer Metropolitan Multi-Purpose Correctional Centre and Dillwynia Correctional Centre.

8F.6: Information about drugs and the law

In NSW, it is an offence to possess, use, produce or supply a drug which has been declared prohibited. Most charges regarding drug in NSW will be because a person broke the law Drug Misuse and Trafficking Act 1985 (NSW).

The Commonwealth Criminal Code deals with offences involving bringing drugs into Australia or exporting drugs to other countries.

For information about drugs and the law, you can read the resources below:

• NSW State Library, “Drugs and the Law”: this website Information about the law in New South Wales relating to drugs, including possession, use and supply, manufacturing, importing and exporting.
• Department of Health “Drug laws in Australia”: this provides information about drug laws in each state and territory.

Sourced on 4/8/22: https://mhrm.mhcc.org.au/chapters/8-people-with-mental-health-and-co-existing-conditions/8f-people-with-mental-health-conditions-who-have-alcohol-and-other-drug-issues/