We all have a culture, we all speak a language: the Australian legal system discusses diversity

Panel on Representing Culturally Diverse Clients. Chair: Dr Tim Soutphommasane, Race Discrimination Commissioner, Australian Human Rights Commission, Jessie Taylor, Hon Justice Helen Wood, Professor Simon Rice OAM

Panel on Representing Culturally Diverse Clients

Cultural Diversity and the Law: Access to justice in multicultural Australia was a conference held in Sydney on the 13th and 14th of March. Jointly run by the Migration Council of Australia and the Australasian Institute of Judicial Administration (AIJA), the conference brought together an impressive group of speakers, including the Chief Justice of the High Court of Australia, a range of other senior judges from around the country, key legal practitioners and community workers, the Attorney-General and shadow Attorney-General, and expert academics.

Plenary sessions focused mainly on the courts, considering the ways in which a changing demographic creates challenges for judges and other court officials. Hon Wayne Martin AC (Chief Justice of WA), introduced the Judicial Council on Cultural Diversity, which was recently established to improve inclusion in the Australian legal system. Importantly, he acknowledged his own status as “male, pale and stale” and how he could only understand discrimination from second-hand accounts.

Many of the judges who spoke discussed the concept of equality and how it has been dealt with, in and by the courts, explaining that there is scope for different treatment to ensure equal outcomes. They offered common examples of cultural differences that could create the potential for misunderstanding. Three or four speakers raised similar examples, such as the varied use and meaning of eye contact.

Many speakers focused on the conduct of trials and of judicial decision-making. Hon Justice Helen Wood (Supreme Court, Tasmania) focused on the case of Dietrich v The Queen. She argued that many of the principles raised in that decision related to fairness and discussed how these applied in terms of accommodating cultural diversity. Others discussed the importance of the broader physical context of the court building itself. They argued that ensuring court facilities are accommodating was one way to create greater ease in the stressful situation of appearing in court.

There were points in the conference that poignantly demonstrated the challenges we are yet to overcome. On a panel discussing “Justice, Security and Terrorism”, a representative of the Attorney-General’s department argued that we “need to hear from credible voices within their own community”. The irony of this statement in the context of an all-white panel was not lost on many of the audience.

Sessions and speakers that were particularly striking were those that took the broad ideas presented in the plenary and added greater depth and critical reflection to the discussion. A panel on “Ethics and Domestic Violence” offered up a discussion on intersectionality. The speakers argued that culturally inaccessible services can create to unique challenges for some women. Further, this panel comprised experienced and respected speakers from different cultural and professional backgrounds, better reflecting the conference values. One statement really stuck with me and (perhaps) challenged some of the underlying assumptions of the event as a whole: “We all have a culture” Maria Dimopoulos said, “and isn’t English a language?” For me this acted as an important reminder. We were not gathered there to address an “us and them” issue, to encourage the “us” to better accommodate the “them”. It was about actually stopping to consider the culture of the court and the law itself, and how our own culture and language may limit or influence the way we work and interact, and the assumptions we make. A question from the audience highlighted another overlooked intersection: the services discussed targeted heterosexual women and their children, bringing into question the inclusion of Lesbian, Gay, Bi-Sexual, Transgender, Queer and Intersex people. This also made me consider the inclusion of people with disabilities and the Deaf community in discussions about cultural diversity, and the overall silence on this intersection throughout the conference.

Laura Smith-Khan with Hon Chief Justice Wayne Martin AC

Laura Smith-Khan with Hon Chief Justice Wayne Martin AC

Another interesting break-out session was on the status and role of interpreters in the court. Hon Justice Melissa Perry (Federal Court) explored the way interpreting is understood and dealt with by the court, and when procedural fairness issues may arise. Professor Sandra Hale (UNSW) shared findings from recent research looking at the status of interpreters working in courts. She argued that where the status, role or qualifications of the interpreter were not well understood, this might influence the attitude of the jury. In extreme cases, jurors may even mistake the interpreter for the defendant. She explained that practice between judges varied greatly. She advocated for greater respect and better conditions for court interpreters, as she saw these as closely linked with the quality of interpreting. Dr Georgina Heydon’s (RMIT) presentation complemented this argument. She introduced her research on vicarious trauma amongst interpreters. Her findings exposed alarming figures in terms of how often interpreters deal with distressing material, and uncovered a lack of support structures to assist them in addressing the second-hand trauma they may experience. Her participants reported that exposure to traumatic interpreting material compromised the quality of their performance. All three speakers on the panel identified the provision of briefing documents before a court hearing as one way to better equip and prepare interpreters for their work.

The issues of power dynamics and roles were taken up again in a fascinating presentation by Professor Simon Rice OAM (ANU) later in the day. After hearing from Hon Justice Helen Wood on fairness, and Ms Jessie Taylor (Barrister, Melbourne) on working with asylum seeker clients and the importance of rapport building, Professor Rice presented a critical consideration of the law. He picked up the idea of everyone having a culture, arguing that “Law has two ways of seeing the world: the law’s way or not.” He argued that many of the activities aimed at improving cultural inclusion are simply about trying to train or adapt people to conform to the system. In this one-way system, he had “trouble with what to do with my cultural awareness once I get it, because of the constraints in which I work.” He argued that “our idea of justice is a monocultural artefact” and that while the law declared a desire to respect cultural diversity, it was not open to legal diversity. In his own experience as an Administrative Appeals Tribunal member, Professor Rice described some of the small steps he took to make the Tribunal less intimidating, and more welcoming – the positioning of the various participants in the room, informal clothing, holding hearings in people’s homes or other locations. He saw these as some ways of “softening the edges” of what is an inherently imperfect system, which brings with it its own cultural limitations.

Professor Simon Rice OAM makes his presentation

Professor Simon Rice OAM makes his presentation

This conference brought together a mix of professionals working in or around the Australian legal system. It is heartening to see these issues being addressed through the bringing together of very senior judges, legal practitioners, community workers and academics to start a conversation about what it really means to be culturally inclusive. Sessions focusing on migrant communities, alongside parallel sessions focusing on indigenous communities reflected an inclusive approach to cultural diversity. Focused sessions on linguistic- and gender-related challenges were also important in this regard. Hopefully future sessions will focus on sexuality and disability as other important intersections to discuss.

Perhaps the most important lesson I took away from the conference was one of critical self-reflection. Victorian Magistrate Anne Goldsborough put it perfectly. Accommodating cultural diversity in the law is not about learning everything about every culture. Rather, it is about learning to recognise and reject my own pre-conceived ideas – whether it be about my own culture and values, or the assumptions I make about others.

 

To discover more…

From conference participants:

ABC (2015), Interview with Ms Nyodal Nyuon, law student and spokesperson for the South Sudanese community in Australia and Ms Jessie Taylor, Victorian barrister.

ABC (2015), Interview with RMIT researchers Sedat Mulayim, Miranda Lai and Georgina Heydon.

Hale, S (2008) “Working with interpreters effectively in the courtroom”, conference slides, AIJA conference, 12-14 March, Freemantle, WA.

Perry, M and Zornada, K (2015) “Working with Interpreters: Judicial Perspectives”, conference paper.

Rice, S (2010) “Human rights issues relating to African refugees and immigrants in Australia”. Background paper for African Australians: A review of human rights and social inclusion issues, Australian Human Rights Commission (June 2010).

Other reading

Angermeyer, PS (2015) Speak English or What? Codeswitching and interpreter use in New York City courts. New York: Oxford University Press.

Eades, D (2013) Aboriginal ways of using English. Canberra: Aboriginal Studies Press.

Solan, L (ed) (2012) The Oxford Handbook of Language and Law. Oxford University Press.

Organisation websites

Australasian Institute of Judicial Administration

Migration Council of Australia

A full list of conference speakers and organisations

Author Laura Smith-Khan

Laura is a PhD candidate in the Department of Linguistics, Macquarie University. She is admitted as a lawyer in NSW and has conducted fieldwork with refugees across four continents and focused on the inclusion of refugees with disabilities. Her current research focuses on language policy and language ideology in Australian asylum procedures. She loves learning new languages and speaking about anything language or communication related.

More posts by Laura Smith-Khan