Handbook for Judicial Officers — Therapeutic jurisprudence and the trauma-informed court

Australia’s First Nations Peoples do not want to be overrepresented in the justice system. We would prefer to be overrepresented in the halls of success and influence.

We have had many leaders who have gone to their graves fighting to explain to non-Indigenous Australia that we, the First Nations Peoples of Australia, are sophisticated and intelligent, and have developed strategies to successfully live in Australia and maintain the world’s oldest culture and justice system for more than 65,000 years.^[3]

Although there has been public acknowledgement at the highest levels of government of the harm done to First Nations Peoples in Australia,^[4] the traumatic impact of colonisation and government policies and practices is still played out in the 21st century in Aboriginal communities.

Trauma may be acquired or inherited and transferred by an individual and/or collectively by a group. Genetic and physiological, behavioural and psychological factors are considered when diagnosing trauma.^[5] The literature characterises such trauma as inter or transgenerational or hereditary trauma.^[6] These terms are often used interchangeably.^[7] This article refers to the trauma passed down from one First Nations generation to another as transgenerational trauma. The primary cause of such trauma was colonisation and the attendant atrocities perpetrated upon the First Nations Peoples of Australia. The resultant loss, violence, disconnection from Country, family, community, language and culture created such pain and anguish that the physical, emotional, intellectual, and psychological functioning and the DNA of First Nations Peoples altered drastically. Trauma became a source of depression, anxiety, loss of esteem, disconnection from spiritual and emotional wellbeing^[8] and caused changes in molecular processes.^[9] These changes in the DNA, behaviours and attitudes of Australia’s Aboriginal and Torres Strait Islander Peoples have been shared with generations that followed up until the present.

Multiple massacres,^[10] dislocation to stations and missions, government policies that forcibly removed children from their families, often into servitude and sexual abuse, ensured that First Nations Peoples were treated in their own country as less than human.

Psychosocial dominance became the natural successor to colonisation. First Nations Peoples were historically perceived as inferior to the colonisers. The divide was reinforced through continuing government policy and practice,^[11] preventing bridges being built between the two communities.

The effects of colonisation and State-enforced policies continue to play out in every facet of the lives of First Nations’ communities as evidenced by the yearly “Closing the Gap” reports.^[12] Numerous academic and government inquiries have exposed continuing institutional racism in Australia.^[13]

State policing strategies continue to reflect poor relationships with First Nations Peoples. For example, young Aboriginal people are overrepresented on the suspect target management plan, a NSW policing policy that identifies young people for “pro-active attention”.^[14] The prison system continues to struggle with the over-representation of First Nations peoples^[15] and deaths in custody.^[16]

The healthcare system has acknowledged institutional racism toward First Nations Peoples.^[17] However in the 21st century, First Nations Peoples are still dying earlier than non-Indigenous Australians.^[18] The leading causes of mortality and morbidity in First Nations Peoples are coronary heart disease, anxiety disorders and diabetes, with coronary heart disease the leading disease outcome attributable to tobacco use.^[19] First Nations Peoples were often paid in tobacco as currency. Today, this highly addictive substance deliberately foisted upon our people as wages is now a leading cause of premature death in our communities.

Children are still being removed from First Nations Families at alarming rates despite the Bringing them home report.^[20] The education system often suspends children perceived to be difficult and First Nations children are disproportionately represented in NSW education data for suspensions.^[21] Suspension of these children impacts on the sense of bias they experience, and contributes to their disengagement with the education system.^[22]

First Nations women are often re-traumatised through domestic violence and the hopelessness of their lives. The parents of many of my clients were members of the Stolen Generations; many co-habit with white men to escape the treadmill of transgenerational trauma but experience domestic violence from their partners. Many First Nations women are in loving relationships, but judicial officers often see only those women impacted by transgenerational trauma through family and community disconnection and violent partners. The self-loathing of abused women is a tragic treadmill of abuse and crime and punishment.

First Nations men have lost the opportunity for initiation, studying Lore, their tribal place in the community and their dignity. Prison represents a tribal existence and is not a deterrent.

I was fortunate to have been granted a scholarship from the Office of Prime Minister and Cabinet to complete a Graduate Certificate in Indigenous Trauma Recovery and Practice at the University of Wollongong. I have relied upon this valuable training in my work as an Aboriginal Community Worker. I work from a trauma-informed basis and have created programs designed to empower women on housing estates to realise their potential and de-colonise their minds. When First Nations Peoples work with their own qualified professionals, there are very good results and outcomes for the community.^[23] First Nations Peoples are a people of sharing and consensus. We know what we are dealing with, we know how to fix it, we need to be encouraged and funded to do so, and to be treated equally. In these ways, Aboriginal workers are integral to building a bridge between First Nations Peoples and non-Indigenous Australians.

Two-hundred-and-thirty years of colonisation and oppression have not changed who First Nations Peoples are. We are deeply spiritual. We belong to community and we have a shared sense of identity. When I work from a trauma-informed basis, these First Nations’ qualities are my points of reference.

If I were to reimagine Trauma as a person, how would she behave?

Imagine that she has been with you since something terrible happened in your life.

She has decided to position herself into your life in such a way that she becomes an indispensable friend, commentator, decision maker, enabler and assumes to give you the identity she has chosen for you.

She convinces you that all decisions must be made with her in mind, every aspect of your life should be drawn in her image, she resets your emotional regulator, she convinces you that you can run, but you cannot hide. You and Trauma are bound at such a deep level that she, Trauma, is a part of your essential self.

You want to convince her to stop intruding in your life, but she reminds you that she is the holder of your story; only she can validate why you do certain things. She warps your moral compass; she separates you from those who would seek to diminish her hold on you.

As events occur in your life, she does not let you filter and devise strategies to deal with newer traumatic events, she hungrily grabs each event and grows within your very soul.

As she grows, she shapes you into her image.

You avoid finding help and support because she has convinced you that you will suffer as a result. She convinces you that you are undeserving because you should have been able to stop her becoming so dominant.

Trauma takes on a personality of her own. She comforts you when you need to understand whether you are to blame for your behaviour, she mocks you when you declare that you don’t want to rely upon her. She also holds your story sacred and protects every detail of your experience as it happened.

Although there are traumatic events you did not experience or witness, they happened to your immediate family and Ancestors. Because they broke the spirit of your family and Ancestors, they became your family’s story, held sacred within the very cells shared to conceive you.

You became the holder of the story. You became the receptacle of Trauma. Then she waited to be fed. Any adverse event you suffered she added to the old story, growing with you, waiting to become your best friend.

You perceive the world around you as belonging to the other, not you. Trauma does not want to share you with anyone as you might move forward and stop her from shaping your future.

It is really difficult for you to move forward because Trauma is the story of your experiences and pain. If you separate from her, how can you have a point of reference with which to make sense of your feelings of loss, injustice, pain, abandonment, betrayal and alienation from society? Trauma is your internal point of reference.

Trauma does not want you to share the story she holds for you. Your story feeds her.

By now you have built up an arsenal of strategies so that nothing painful can happen to you again.

In her own way Trauma has set up warning systems for you.

Lately you have behaved in ways that attract anger and consequences toward you. Maybe you are now dealing within the justice system as an offender.

Trauma has convinced you that to stop being vulnerable, you need to hit out and become the perpetrator. Trauma has validated your story to the point that you feel it is you and Trauma against the world. This is exactly what Trauma needs to feed and grow. You are now going to be impacted by the justice system, your vulnerability is going to be laid bare publicly.

This is traumatic. The difference now is that you are not blameless. You are hurting, feeling pain and impacted out of proportion to the reality of your situation. You withdraw and become angry that you are hurting when you were supposed to never hurt again. Trauma feeds your transgenerational memories and makes it hard to deal with the justice system. Trauma rekindles old pain and memories. Trauma wants you to hurt so that she can feed.

There is one thing that frightens Trauma — that you will share the story that she holds for you.

Trauma does not want you to talk, to yarn, to share your pain. If you do share your story, you will own it. You can experience Dadirri or deep listening, as you tell your story. The listener will summarise your story and validate your experience within this story as unique to you and sacred to you.

If you share your story with a deep listener, you will have a chance to objectively look at life events that impacted you and have the chance to understand that the offender owns the consequences that you have been living with until now. You were the innocent party to these events; you don’t need to carry shame that you were powerless to stop them.

You can journey away from the impacts of trauma, you can draw a line in the sand and try to move forward. Your story will pain you when triggered, but you will have strategies and will own the story so that you can edit it and report on it how you wish. Trauma keeps the story raw and keeps you beholden to the pain inflicted by the offender.

There will always be that deep well of trauma containing past events. You can identify it for what it is now — the unfortunate circumstances that dominated your life. Now you actively hold the story of your trauma, prepared for the next negative circumstance which you will deal with on its own merit and not let it add to the old well of Trauma.

You can now identify that negative events do happen, that is part of life, but this time round you have stared Trauma down and you will not let new events add to the past, but analyse them as they happen.

If you are an offender within the justice system, it is so important that you have that conversation about Trauma. You will have realised by now that turning perpetrator adds to your lowered self-esteem.

Transgenerational trauma is insidious. Those who carry it receive it at conception. It is in the DNA and cannot be removed. Trauma can only be lessened or destroyed through Truth in historical fact.