ABSTRACT
This chapter examines current mechanisms to divert people with FASD from prosecution and their limitations. Adopting a decolonising approach, it argues for reform to primary diversion (police cautioning) and secondary diversion (family conferencing models) to better respond to the needs, including cultural needs, of people with FASD. We are critical of current ‘diversionary conferencing’ models in Australia focussed heavily on forms of restorative justice that create a ‘learning experience’ for deviant youths as well as provide satisfaction for victims. The fact is that young people with FASD can’t learn (they can’t rather than won’t obey the law), and they won’t develop ‘empathy’ when confronted with their victims due to their permanent cognitive disability. From a reading of international experience in other CANZUS societies we discuss the potential for diversionary conferencing that provides an environment for collective decision-making on behalf of the child, based on the New Zealand model.
