FASD and the Criminal Justice System in Australia
Why Understanding FASD is Critical for Justice Professionals in Australia
Fetal Alcohol Spectrum Disorder (FASD) is a lifelong, brain-based disability that is significantly under-recognised in Australia’s criminal justice system. Individuals with FASD often have cognitive and behavioural impairments that make them more vulnerable to police contact, court involvement, and incarceration.
Justice professionals play a key role in identifying and responding to these impairments. A better understanding of FASD can lead to fairer outcomes, reduced recidivism, and more effective rehabilitation.
People with FASD commonly experience:
- Poor impulse control and difficulty with decision-making
- Limited understanding of cause and effect
- Memory, attention, and comprehension difficulties
- Emotional regulation challenges and struggles following instructions
These factors can contribute to repeated justice system involvement, not due to intentional defiance, but as a result of brain injury caused by prenatal alcohol exposure.
Newcastle FASD Youth Justice MODEL OF CARE Handbook, 2020
Prevalence of FASD in Detention
Fetal Alcohol Spectrum Disorder (FASD) is significantly overrepresented in Australia’s youth detention centres.
A landmark Australian study at Banksia Hill Detention Centre in Western Australia found that:
- 36% of young people in detention were diagnosed with FASD, one of the highest recorded rates globally.
- 89% of youth detainees had at least one form of severe neurodevelopmental impairment, increasing their risk of justice involvement.
These findings suggest FASD is likely underdiagnosed across Australian youth detention populations.
International research supports this trend:
- A 2019 Canadian study found that over 30% of incarcerated individuals had FASD.
- Earlier research indicates individuals with FASD are up to 19 times more likely to be incarcerated compared to their peers.
Early identification, diagnosis, and appropriate support are critical to breaking the cycle of reoffending among individuals with FASD. Justice professionals, including police, lawyers, judicial officers, and correctional staff, play a key role in recognising and responding to FASD with informed, compassionate approaches.
This highlights the urgent need for FASD screening, diagnosis, and support within the justice system.
Trauma-Informed Care and Youth Justice Involvement
Many young people with Fetal Alcohol Spectrum Disorder (FASD) have experienced significant trauma. This can compound their neurodevelopmental challenges and increase vulnerability within the justice system.
Trauma-informed care recognises how trauma affects behaviour, decision-making, and emotional regulation. It shifts the focus from punishment to understanding and support.
Within justice settings, trauma-informed practice can:
- Build engagement and trust
- Reduce reoffending
- Support tailored, therapeutic interventions
Justice professionals must adopt a trauma-aware, neurodiversity-informed approach — recognising that many justice-involved individuals are living with both trauma and brain-based disability.
Indigenous Youth, FASD, and Overrepresentation in the Justice System
Indigenous youth in Australia, particularly those affected by Fetal Alcohol Spectrum Disorder (FASD), are significantly overrepresented in the criminal justice system.
In the June quarter of 2023:
- 63% of young people in detention were Indigenous
- Indigenous youth made up just 5.7% of the population aged 10–17
- Indigenous youth were 29 times more likely to be in detention than their non-Indigenous peers
This disproportionate representation is linked to:
- Systemic disadvantage and intergenerational trauma
- Social exclusion and limited access to services
- Underdiagnosis of neurodevelopmental conditions like FASD
Addressing these disparities requires culturally responsive, FASD-informed practice, including:
- Culturally safe care co-designed with Aboriginal and Torres Strait Islander communities
- Early screening and access to diagnostic pathways
- Community-led interventions grounded in cultural strength
Partnerships with Aboriginal Community Controlled Organisations (ACCOs) are essential to creating effective, trusted, and trauma-informed justice responses.
Understanding FASD-Related Behaviours in Justice Settings
Individuals with Fetal Alcohol Spectrum Disorder (FASD) often present with behaviours that can be misunderstood within police, court, or custodial environments.
Common characteristics of FASD include:
- Impulsivity and acting without consideration of consequences
- Difficulty processing, recalling, and retaining information
- Communication and social challenges, including high suggestibility
- Confabulation (unintentionally filling memory gaps with inaccurate details)
- Struggles with following legal instructions, bail, or parole conditions
These neurodevelopmental traits can increase a person’s vulnerability in justice processes. Individuals with FASD may:
- Make false confessions under pressure
- Misunderstand legal terminology or proceedings
- Engage in behaviour they do not fully comprehend or intend
Why It Matters
Without proper understanding, these behaviours may be mistaken for deliberate defiance or non-compliance. This can lead to inappropriate charges, harsher sentencing, or missed opportunities for intervention.
Justice professionals must be equipped to recognise when behaviour is disability related. This includes:
• Participating in FASD-informed training
• Referring individuals for neurodevelopmental assessments
• Adopting trauma-aware, strengths-based approaches
Screening for FASD in the Justice System
Screening for Fetal Alcohol Spectrum Disorder (FASD) should occur at all stages of the justice process, from initial police contact through to court, sentencing, and detention. Early identification is critical for diverting individuals with FASD toward appropriate support and reducing the risk of further harm.
Professor Elizabeth Elliott, a leading Australian researcher in this field, recommends that all young people involved in the justice system be screened for FASD prior to sentencing. This ensures their neurodevelopmental needs are properly recognised and addressed.
Justice professionals can support early identification by:
- Integrating validated FASD screening tools into initial assessments
- Referring individuals for multidisciplinary diagnostic assessments when FASD is suspected
- Advocating for FASD-informed, therapeutic responses and diversionary pathways
To locate FASD-informed health professionals and diagnostic clinics in Australia, visit the FASD Hub Australia Service Directory.
Supporting People with FASD in the Criminal Justice Sector
Fetal Alcohol Spectrum Disorder (FASD) is a complex, lifelong disability that requires tailored responses from justice professionals. Ensuring that individuals with FASD are recognised, supported, and treated fairly is crucial for improving justice outcomes and reducing recidivism.
Effective FASD-informed strategies in justice settings include:
- Using plain language, visuals, and simplified instructions
- Allowing extra processing time and repeated explanations
- Setting clear, concrete expectations with minimal ambiguity
- Providing access to disability advocacy and case management support
Justice sector workers must adopt approaches that accommodate cognitive and behavioural challenges, ensuring equitable treatment throughout police, court, and correctional processes.
NOFASD Australia provides access to training, resources, and a directory of FASD-informed professionals to assist justice workers in supporting individuals with FASD. Learn more about support options here.
Interagency collaboration between justice, health, and community services is crucial.
Australian Resources for Justice Professionals
Police Information Cards can be carried by people with FASD to be handed to police officers and other professionals if needed.
Young Offenders must be screened for Fetal Alcohol Spectrum Disorder before sentencing – Professor Elizabeth Elliott
What justice professionals can do – A range of resources and videos for Justice Professionals on the FASD Hub Australia website
Equality before the Law Bench Book section 4.1.8.1 (Department of Attorney General WA)
Fetal Alcohol Spectrum Disorder: Knowledge, Attitudes and Practice within the Western Australia Justice System (Telethon Institute for Child Health Research, funded by FARE
FASD in the Justice system – FASD HUB PDF
FASD Overview – Issues in the Justice System – The Kids
Newcastle FASD Youth Justice MODEL OF CARE Handbook – The kids
International Resources for Justice Professionals
FASD and Justice Canada – information related to FASD and its impact on various aspects of the justice system, from investigation to sentencing and corrections
FASD Guidebook for Police Officers
YOUTH PROBATION OFFICERS’ GUIDE TO FASD SCREENING AND REFERAL – Julianne Conry
Invisible – Fetal Alcohol Spectrum Disorder (FASD) and the Justice System – BearPaw
Interview Considerations–Fetal Alcohol Spectrum Disorder – Police Chief Magazine
TIPS For Justice Workers – FASD NETWORK OF SASKATCHEWAN
FASD: What Police Officers Should Know – FASD United
Mistakes I have made with FAS Clients – David Boulding