Hear What the Experts Have to Say about Our Practice Guide

The Magnolia guide, written in partnership with the Aboriginal Legal Rights Movement, has recently been reviewed by experts in the field. The first review, by Dr Jack White, appeared in the Law Society publication, the Bulletin, and the second was by Emeritus Professor Rick Sarre in the journal Psychiatry, Psychology and Law. We were pleased that both reviewers understood what we were trying to achieve with the Guide and agreed that there is an urgent need to strengthen the cultural content of medico-legal reports prepared for SA courts. We are grateful to them both for reviewing the guide and for their generous and constructive reflections.

New guide for preparing mental health reports on Aboriginal people by Jack White

Having worked as a forensic psychologist for more than 25 years, I thought I knew most things about writing reports for court.

When I came upon the book “A practice guide for preparing mental health pre-sentence reports with Aboriginal people in the South Australian Criminal Justice System” I discovered I was very wrong.

This is a very challenging book in that it highlights the prejudices implicit to writers who have had a privileged background and come from a dominant culture. This book produced by the Magnolia Project (especially Dr Andrew Day) and the Aboriginal Lega Rights Movement, explains how cultural ignorance and conservative, conventional psychological approaches may negatively impact upon the way that the criminal justice system can affect First Nations peoples.

Its message is simple – as a writer informing the courts about a group of people who come from a different culture and disadvantaged backgrounds – you need to have more culturally sensitive knowledge about the aboriginal defendant’s condition.

It argues there is a logical need to adopt a “culturally informed” approach to understanding trauma, violence and offending behaviour. This implies that the writers should understand issues around the indigenous person’s cultural history, geography(country), language, family connections and trauma experiences. The book also examines how the legal system (by legislation and case law) has affected the way Aboriginal people are treated in the criminal justice system – both in an Australian and Canadian context.

From a pragmatic perspective, the book is highly informative in providing a guide on how mental health professionals should structure their reports when writing about FirstNations people. This should include providing historical information (e.g. the person’s link to the stolen generation); details about the person’s specific cultural circumstances and how connected that person is to his or her culture. The report should examine closely issues around trauma – and address issues such as offence-related trauma triggers associated with the person’s offending. The book argues that those in the law – judicial officers and lawyers – should recognise the relevance of past trauma as a mitigating factor in sentencing.

The book addresses how a writer can best provide an opinion from a case conceptualisation perspective. This approach takes into consideration, from a mental health and well-being perspective, the individual’s coping skills, their support system, their connectedness with cultural networks, etc. It emphasises the importance of “safety planning” focused on short-term management of risk.

The final section of the book “practitioner self-awareness” argues that “it is not enough… to only understand how people are different, practitioners need to carefully examine how this difference results in differential social power.”

The insightful conclusion for non-First Nation practitioners states:

“expert witnesses should routinely reflect on the nature of their personal and professional engagement with First Nations issues, seeking advice from cultural consultants when appropriate.”

I strongly recommend this book to all practitioners involved in preparing reports for the court, and to those individuals involved in the criminal justice system, whether as legal practitioners or judicial offices. We can all be better informed by the approach laid out in this book.

Dr Jack White is Principal Psychologist at White & Associates Psychologists.

Book Review by Rick Sarre

Rick Sarre (29 Apr 2024): A Practice Guide for Preparing Mental Health Presentence
Reports in the South Australian Criminal Justice System. Psychiatry, Psychology and
DOI: 10.1080/13218719.2024.2330045

This is a timely and useful practice guide designed to assist mental health professionals in their preparation of reports to court officers or, indeed, to any other persons who receive materials relevant to criminal justice practices in South Australia. It is underpinned by the safe assumption that professionals who work in this area are dedicated to their respective tasks and constantly working to keep abreast of developments in the field (see Heseltine et al, 2011).

The authors of this resource, principally Andrew Day and Katherine McLachlan, provide a contemporary and timely primer that gives important regard to the potential relevance of First Nations cultures when forming expert opinions and to support the cultural safety of mental health expert witness pre-sentence reports. It also offers a useful methodology to guide those seeking to establish and embed the cultural safety of legal decision-making more generally. The importance of culturally safe reporting in the criminal justice system in Australia can never be overstated.

The context for this work is the situation in South Australia where Aboriginal people are currently twelve times more likely to be imprisoned than the general population, with over sixty percent of Aboriginal people in prison held in custody on remand. The national picture is no better. First Nations men and women represent only three percent of the total population in Australia, yet almost thirty percent of the Australian prison population (Korff, 2022). Moreover, according to the Productivity Commission (2022), in 2021/2022 in Australia there were 4,350 children who were detained or imprisoned over the course of the year. More than 50 percent (2,310) of these identified as First Nations. There is no doubt that our justice systems must acknowledge the consequences of contemporary social exclusion that perpetuates, and is thus allied with, legal vulnerability. This knowledge must be incorporated into, and inform, their practices. This guide is designed to assist in this process.

Lest anyone think that issues of First Nations vulnerability have eased in the immediate past, one need only reflect upon the death of Aboriginal woman Veronica Nelson in police custody in Victoria in January 2020 (Sarre & Bartels, 2023). Ms Nelson was suffering from an undiagnosed medical condition when she was arrested on suspicion of shoplifting and breach of bail. She was later found dead in her cell at the Dame Phyllis Frost Centre, despite using the intercom system about forty times to alert staff to her deteriorating condition. Coroner Simon McGregor found “cruel” and “degrading” treatment of Ms Nelson caused her preventable death. He said “… I find that the Bail Act has a discriminatory impact on First Nations people, resulting in grossly disproportionate rates of [First Nations people] remanded in custody, the most egregious of which affects alleged offenders who are Aboriginal and or Torres Strait Islander women.” Coroner McGregor found the bail decision-maker in Victoria Police failed to consider Ms Nelson’s vulnerability, a provision afforded her under current bail legislation and the Victorian Charter of Human Rights and Responsibilities.

The Magnolia Project book is divided into five sections. It begins by reminding the reader of the formal apologies made to First Nations peoples by both the Australian Psychological Society and the Australian and New Zealand College of Psychiatrists for a collective failure to recognise the importance of culture in the development of treatments, and to prevent and reverse the ‘disastrous’ practices of yesteryear, principally the Stolen Generations (Human Rights and Equal Opportunity Commission, 1997). The forcible removals of Aboriginal and Torres Strait Islander children had long-term, intergenerational traumatic impacts on individuals and their families and descendants (Human Rights and Equal Opportunity Commission, 1997, p. 345). The 2018 follow-up report, Bringing Them Home 20 Years On: An Action Plan for Healing, observed that

[m]ost Aboriginal and Torres Strait Islander people have been affected by the Stolen Generations. The resulting trauma has been passed down to children and grandchildren, contributing to many of the issues faced in Indigenous communities, including family violence, substance abuse and self-harm. (Aboriginal and Torres Strait Islander Healing Foundation, 2018, p. 4)

All of this is, of course, something that clinicians now readily recognise, but the real challenge here lies in identifying what this actually means for mental health assessment in forensic settings. And in this book, the authors aim to generate greater reflection and discussion about this very topic through specific references to how expert witness opinion is formed in sentencing matters.

Their starting point is to consider the values that practitioners bring to this area of work, with awareness of both trauma-informed and cultural safety approaches, both identified as useful. Whilst it is hard to disagree with this, I can think of other values – such as a commitment to social justice – that psychologists and psychiatrists might also wish to consider when they work in Indigenous cultural contexts.

It is, however, the second section of the book, the ‘knowledge base’, that offers the most substantive contribution. A lot of territory is covered here, from the need to know about and engage with the local communities in which forensic practice occurs, and to consider how the concepts of social and emotional wellbeing, and an awareness of different types of traumas (and how these relate to risk) might inform an expert opinion. Once again, it is hard to disagree with the authors’ suggestion that this is foundational knowledge for anyone who works in this area, and yet it is not routinely considered in current pre-sentence reporting practice. 

The last part of this section of the guide is undoubtedly the most useful. It offers an account of how the courts have accounted for the importance of culture in legal decision-making. It discusses landmark cases, as well as more general initiatives, such as the development of the Bugmy Bar book. This is all material that every report writer should be aware of, as it will help with the preparation of reports that are more relevant to legal decision-making.

The term ‘Bugmy’ derives from a High Court case decided a decade ago on appeal from the NSW Supreme Court, Bugmy v The Queen [2013] HCA 37. Mr Bugmy, an Aboriginal man from Wilcannia, NSW, had had a very difficult life, laced with drugs, alcohol and crime. He first came to the attention of police at the age of 12 and was before the courts again after a serious assault upon a correctional services officer when he was aged 29. Could his troubled past be a mitigating circumstance in sentence? Here is what the court said:

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest … that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. [2013]HCA 37 at 44 (citations omitted)

In other words, the court emphasised that there is no justification for a sentencing judge to apply a different method of analysis to sentencing Aboriginal offenders generally than that which applies to non-Aboriginal offenders. Nevertheless, it is relevant for sentence submissions for an advocate to state the way that that disadvantage has been realised in particular defendants’ lives.

The final sections of the guide introduce some examples of work being carried out in this area in other jurisdictions and some of the clinical skills that experts might bring to these matters. They are focused on practice and perhaps serve as a reminder to consider certain things when conducting an assessment (such as the use of diagnoses and the validity of psychometric tools) as well as some suggested areas of content (assessing ‘connection’, case conceptualisation, safety and scenario planning). It concludes with a somewhat cursory reminder of the need for practitioner self-reflection and self-care, but this is still both important and welcome.

Overall, this is a very useful guide and, although intentionally focused on practice in South Australia, will interest those who work in these fields in other regions of the country. It provides practical advice that will assist legal practitioners and medical professionals in the preparation and presentation of evidence to establish and reinforce the applicability of the Bugmy sentencing principles. There is also relevance for other contexts, including applications for bail, diversionary programs, and coronial inquests.  And, importantly, it is a free resource, written by volunteers, which can be accessed on the Magnolia website: https://magnoliaproject.com.au/wp-content/uploads/2023/09/20230816-The-Magnolia-ALRM-Practice-Guide.pdf

The Magnolia Project guide is one of a number of resources that consider the importance of culture to mental health. Another is Significance of Culture to Wellbeing, Healing and Rehabilitation, co-authored by Vanessa Edwige and Paul Gray (UTS Jumbunna Institute of Indigenous Education and Research, 2021). This guide also builds upon the resources of the Bugmy Bar Book that has been designed to help legal professionals (and allied health and wellbeing professionals) to explain the links between an Aboriginal person’s experiences of disadvantage and their contact with criminal processes, including sentencing. Also worthy of note is the book Cultural Safety in Trauma-Informed Practice from a First Nations Perspective: Billabongs of Knowledge, by Nicole Tujague and Kelleigh Ryan (Palgrave Macmillan, 2023). Designed as a companion for anyone who works or will work with First Nations families and communities, it outlines how to conduct culturally safe and trauma-informed professional practices. It is especially relevant for Indigenous practitioners and service providers. These are all timely and important resources. They continue a fine tradition of relevant and culturally safe learnings and resources embedded in Teaching Aboriginal Cultural Competence: Authentic Approaches, edited by Barbara Hill, Jillene Harris and Ruth Bacchus (Springer, 2021).

All of these books and materials answer well the challenge given a decade ago by Australia’s first federal Human Rights Commissioner, Brian Burdekin, in a speech he gave at the 2014 University of South Australia law graduation ceremony. He challenged the assembled graduate class:

…to be conscious of the obligations we all share – both professionally and personally – to create a culture of human rights, of tolerance, of non-discrimination, of respect for individual differences, and one in which the rights of the most vulnerable and disadvantaged in our country are respected and protected…

The Magnolia Project resource is an excellent and timely initiative. Its authors are to be applauded for meeting a pressing need.


Aboriginal and Torres Strait Islander Healing Foundation (2018). Bringing Them Home 20 Years On: An Action Plan for Healing www.healingfoundation.org.au Accessed: 11 October 2023.

Edwige, V., & Gray, P. (2021). Significance of Culture to Wellbeing, Healing and Rehabilitation. https://www.publicdefenders.nsw.gov.au/Documents/significance-of-culture-2021.pdf Accessed: 11 October 2023.

Heseltine, K., Day, A. & Sarre, R. (2011). Prison-Based Correctional Offender Rehabilitation Programs: The 2009 National Picture in Australia, Research and Public Policy Series, No. 112, Canberra: Australian Institute of Criminology. http://www.aic.gov.au/publications/current%20series/rpp/100-120/rpp112.aspx Accessed: 11 October 2023.

Human Rights and Equal Opportunity Commission (1997). Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Canberra: Government Printer.

Korff, J. (2022). Aboriginal prison rates, https://www.creativespirits.info/aboriginalculture/law/aboriginal-prison-rates Accessed: 11 October 2023.

Productivity Commission (2022). Report on Government Services, Melbourne, https://www.pc.gov.au/ongoing/report-on-government-services/2022/community-services/youth-justice Accessed: 11 October 2023.

Sarre, R. & Bartels, L. (2023) The Conversation, 29 January, Discriminatory impact on First Nations people: Coroner calls for urgent bail reform in Veronica Nelson inquest. https://theconversation.com/discriminatory-impact-on-first-nations-people-coroner-calls-for-urgent-bail-reform-in-veronica-nelson-inquest-198507 Accessed: 11 October 2023.

Tujague, N., & Ryan, K. (2022). Cultural Safety in Trauma-Informed Practice from a First Nations Perspective: Billabongs of Knowledge. Palgrave Macmillan.