Gilbert + Tobin has worked with people affected by FASD, their carers and NGOs in this area for a number of years, with many of these organisations throwing their support behind the need for law and policy reform. June Oscar AO, Aboriginal and Torres Strait Islander Social Justice Commissioner and long-time advocate for people with FASD, helped launch the campaign in Sydney today to raise awareness of the issues they face.

Laws and policies that determine a person’s ability to access support services and have their disability recognised if they come into contact with the criminal law arose largely from an awareness of people with intellectual disability and mental illness. Unfortunately, this means people with other forms of neurological impairment, such as FASD, who do not meet the diagnostic criteria for intellectual disability or mental illness miss out on the support they need.

Even when broader terms such as “intellectual impairment” or “mental disorder” are used to determine eligibility the lack of a consistent, clear definition of those terms results in uncertainty for people with FASD or the denial of assistance.

Anne Cregan, Partner, Pro Bono lawyer who is leading G+T’s advocacy efforts, says many people with FASD face significant difficulty in accessing support simply because their disability doesn’t fit the Government’s current definitions.

“People with FASD are missing out on support and on recognition of their disability in the criminal justice system not because they need it any less than people with other forms of disability but because they have a disability that doesn’t meet the eligibility criteria. There is no policy basis for their exclusion and often they need the same type of support for the same reasons as someone with an intellectual disability or autism spectrum disorder but they miss out because they have FASD.

The high prevalence of people with FASD in the criminal justice system can only be addressed, and people with FASD will only be able to live up to their potential when their disability is properly recognised and they and their families get the support they need,” said Cregan.

Speaking at the Sydney launch, June Oscar AO said when people with FASD aren’t recognised by systems and policies of support, the law resorts to punitive measures so we must work together to redefine the system and address intersecting forms of discrimination.

“Alcohol has taken a huge toll on our children. Children affected by FASD have too much exposure to the criminal justice system and a profound lack of support which means self-harm, suicide and alcohol abuse are rife because the system is unable to recognise their needs. The law should always strive to guarantee our human rights and to deliver justice to all Australian citizens no matter our circumstances or abilities.”

“I want to commend Gilbert and Tobin, a firm that has been an enduring friend of Indigenous peoples across Australia. This campaign is part of their ongoing commitment in striving to improve the law so it does reflect all our needs and the recommendations outlined in their policy paper are a vital step in delivering justice where discrimination has all too often occurred,” said Oscar.

“FASD must be recognised in our laws and implementation of those laws should recognise the fundamental human rights of Indigenous people, most importantly, the right to health, added Oscar”

Gilbert + Tobin is urging governments to conduct a review of law and policy to determine where people with FASD are excluded and to work together with medical professionals and advocates for people with FASD and other forms of cognitive impairment to develop a more inclusive definition of cognitive impairment for use in law and policy.

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