ABSTRACT
This chapter continues the analysis of court diversion by reference to a case study from New South Wales, Australia. The chapter focuses on the first step in the judicial decision to divert a criminalised disabled person in New South Wales—whether the court has jurisdiction to order court diversion of an individual appearing before the court on criminal charges. This question of jurisdiction is answered by the individual having a diagnosed disability. The legal centring of diagnosis as conceptually key to the judicial decision as well as the social reality of court decision-making practice masks the violent and colonial nature of court diversion. By connecting critical legal scholarship on jurisdiction with critical disability studies, and reflecting on court data, this chapter reveals how the question of jurisdiction to order court diversion turns judicial focus inward to the body and thus opens up the possibility of ongoing, carceral control and violence of a nature and extent not possible through criminal law. This first step in judicial decision-making limits the potential for law through court diversion to capacitate rather than debilitate individuals who are diverted.
