Documentos de Académico
Documentos de Profesional
Documentos de Cultura
RIGHT TO AN INTERPRETER 8
INTERNATIONAL LAW 8
THE LAW IN QUEENSLAND 9
PROVISION OF INTERPRETERS 9
ABORIGINAL ENGLISH INTERPRETERS 10
CONCLUSION 12
PART 2 —OUTSTANDING ISSUES 13
PROVISION OF INTERPRETERS 13
PART 3—CONCLUSION 20
SUMMARY OF RECOMMENDATIONS 21
REFERENCES 22
©Mark Lauch.
This publication is copyright. No part may be reproduced by any process.
This report was produced by the Faculty of Law, Queensland University of
Technology, Brisbane, Australia, November 2010.
2
INTRODUCTION
A just criminal justice system would
ensure that both the accused
This is a review of one aspect of
access to justice within the existing
If access to
and witnesses can understand legal system. Therefore, there will English is an issue
the criminal proceedings and be be no recommendations for the
understood by the court. This goal is removal of the adversarial system then there is no
elusive in a jurisdiction with multiple
language groups. Queensland
or the introduction of customary
law. The goal is to find solutions that
access to justice.
contains over 100 languages; work in the current regime. There CAIRNS MAGISTRATE
migrant languages (including are already examples in Queensland
English), Indigenous languages of the justice system adapting to
and new hybrids such as Creoles. In accommodate Indigenous culture
Queensland, court is conducted in and demography, such as the
Australian Standard English, a dialect Murri Courts (Queensland Courts,
of English which is not spoken by, n.d.) which provide culturally
and/or is not the first language appropriate sentencing hearings
of, many accused and witnesses. and the Remote Justice of the Peace
Providing interpreters is a reliable (Magistrates Courts) Program that
and effective method of ensuring allows Indigenous JPs in remote
‘access to English’, but accredited, communities to hear minor matters
professional interpreters are not (Criminal Code 1889, s.552C(5)). But
always available and, in the case of as will become clear, restraints of
Aboriginal English, cannot be used to time, distance and resources are
address communication breakdowns. challenging. We are dealing with a
In 2000, the Queensland Department criminal justice system that wants
of Justice and Attorney-General to be ethical, accessible and just
(JAG) tried to alleviate the issues but is struggling to find a workable
associated with Aboriginal English method.
by publishing the Aboriginal
English in the Courts Handbook (the This project was funded by a grant
Handbook). This paper reviews the from the Legal and Professional
effectiveness of the Handbook on Interest on Trust Account Fund
its tenth anniversary. Unfortunately, administered by JAG. Consultation
good intentions and hard work by a was undertaken with judges of
range of state government agencies the District Court of Queensland,
and individuals has not produced a Queensland Magistrates, prosecutors
satisfactory result over the decade. from the Office of the Director of
As one Cairns magistrate noted: ‘If Public Prosecutions (ODPP), lawyers
access to English is an issue then from Legal Aid Queensland, policy
there is no access to justice’. officers and registry staff from JAG,
the Cultural Support Unit of the
Queensland Police Service (QPS)
and the Queensland Department of
| RIGHTS VERSUS REALITY
Communities (QDOC).
3
PART 1—BACKGROUND
The Handbook was designed contact and the lack of mathematical By 2001, half of the traditional
to improve access to justice for terms to describe information (CJC, languages were extinct and
Indigenous Queenslanders by 1996, p. 11). Before continuing the majority of the remainder
helping to overcome communication with the review it is important to ‘under threat’ because they were
breakdowns in the courts. People provide a background to Indigenous only spoken by a small number
from Indigenous communities faced language rates in Queensland and of elderly people (McConvell &
significant difficulty in court most the legal response to language Thieberger, 2001, p. 17). At the time
significantly from their distrust and services in courts. of colonisation, more than 100
unfamiliarity with the justice system Indigenous languages and dialects
as well as the fact that Australian This section begins by explaining the existed in the region now covered
Standard English is not their first nature of Indigenous language usage by the state of Queensland. Of these,
language (JAG, 2000, p. 7). As the in Queensland. It then discusses the only 50 are still spoken and only
Handbook explains: nature of Aboriginal English and 20 are still used as a first language
how it differs from both traditional (State Library of Queensland, 2010).
The problems are even greater for those languages and Australian Standard It is not clear how many people still
whose first language is a traditional English. Finally, the section explains speak each language, but when the
language such as Wik Mungkun. This the right to an interpreter that exists Handbook was published a decade
lack of comprehension may amplify in this state and the consequences of ago it reported that:
existing community distrust of the that right for speakers of Aboriginal
justice system. The difficulties exist for a English. Today it is estimated that only four
number of reasons, including: of these traditional languages in
Queensland still have over two
• a lack of qualified interpreters in INDIGENOUS
hundred fluent speakers. Nine other
Indigenous languages; LANGUAGES IN traditional languages are still spoken as
• a failure by the legal system to QUEENSLAND a first language in the regions around
recognise the differences between Cairns, Cape York Peninsula and the
Aboriginal English and Australian HISTORY Gulf of Carpentaria, but each has fewer
Standard English; than two hundred speakers. The two
At the time of colonisation there
• in Indigenous communities, a were over 200 Indigenous traditional main language groups in the Torres
general lack of understanding languages in over 500 dialects Strait are comparatively strong. The
of the legal process and subtle spoken in Australia (McConvell & Western Language, Kala Lagaw Ya, has
nuances of court discourse, Thieberger, 2001, p. 16), in two at least three thousand speakers, and
especially in cross-examination. distinct language groupings: the Eastern Language, Meriam Mir, has
(JAG, 2000, p. 7) Aboriginal languages spoken on about one hundred. (JAG, 2000, p. 8)
the mainland and Tasmania, and By 2008, only 11% of adult
In its 1996 report on Indigenous
Torres Strait Islander languages. Indigenous Australians ’spoke an
witnesses, the Criminal Justice
A number of pidgin and Creole Aboriginal or Torres Strait Islander
Commission (CJC) noted that
languages developed after contact language as their main language
Aboriginal witnesses faced ‘a unique
with European settlers of which at home’, although this figure was
combination of disadvantaging
Torres Strait Creole is still spoken in much higher (48%) for people living
factors’. The CJC listed similar reasons
Queensland. Pidgin is a language in a remote area (Australian Bureau
as those given above, as well as
that mixes words from two of Statistics, 2006). The figures are
dispossession of their land and
languages, in this case a traditional falling off for children (4-14 years) of
RIGHTS VERSUS REALITY |
1
Torres Strait Creole is a non-traditional language.
2
Registry staff noted that Indigenous people usually appear for criminal, domestic violence and QDOC matters. They are rarely involved in
civil matters except as victims of car loan scams. They are not heavily represented in family court matters because they rely on unique cultural
mechanisms and relations to resolve these disputes.
3
It is not the intention of this paper to investigate these issues or suggest that Aboriginal English may be a factor in over-representation. While
language has been studied in the criminal justice system (Cooke, 2002a, 2002b; Eades, 1992, 2008) no study has been made demonstrating
whether or not language difficulties directly contribute to over-representation.
5
number of reasons. First, it has been
tried and had limited success in
Indigenous and non-Indigenous
Australians that can lead to
The communication
remote communities (Storry, 2006). communication breakdowns (CJC, breakdowns that can
Second, it would be paternalistic and
enforcing Australian Standard English
1996, p. 19). The Handbook covers
the full range of issues including
occur between the
on the communities may breach the pronunciation, grammar, vocabulary, court and Indigenous
United Nation (UN) Declaration of
Rights of Indigenous Peoples 2007
gestures, eye contact and silence.
The difference in meaning can lead
Queenslanders
(articles 13 and 14). Next, teaching to misinterpretations of the witness’s become an even
English would take years; the issue
of appearance in court exists now
evidence by the court (Eades, 2006).
It has been recognised that lawyers
greater issue given
and must be addressed within the already filter the narrative of the the disproportionate
existing system. Finally, it is well
established that people think in their
witness’s evidence and introduce
subtle changes to match the story
appearance of
first language when under stress. that he/she wants to present to the Indigenous people in
Being a witness in court is stressful
therefore Indigenous witnesses who
court. These changes are amplified
when the witness is not speaking the
Queensland criminal
do not speak Australian Standard same dialect as the lawyer (Eades, cases.
English as their first language will 2008). RIGHTS VS REALITY
think in either their traditional
language or Aboriginal English. The Handbook addressed these However, it is also possible to mistake
issues by providing a section on a thick accent for a dialect. As one
each point of concern, for example, judge explained:
CONCLUSION
gratuitous concurrence, explaining
Indigenous languages, while under what it is, why it is a problem in There was a police interview with an
threat, are still actively spoken as court and making a suggestion to Aboriginal witness from Palm Island…
first languages in Queensland. rephrase the question to avoid the A crown witness… And the defence
Aboriginal English is the most communication breakdown. The were trying to get me to exclude his
common first language of Aboriginal Handbook is necessary because, evidence on the basis that he did
Queenslanders, especially those as will be demonstrated below, not have an appropriate intellect to
who live in remote communities. knowledge of Aboriginal English can give evidence. They were relying on
It is neither feasible nor ethical to enable a barrister to unjustly discredit the transcript of this police interview
make all residents of Queensland a witness if the court is ignorant which had been transcribed by police
fluent in Australian Standard English. of the language issues. Cooke has personnel, and contained all this
Indigenous Queenslanders appear suggested that a skilled barrister unintelligible or [sic] stuff that made
in court and are imprisoned at a can even use their knowledge no sense at all. And I said, well look,
significantly disproportionate rate of Aboriginal English to create a I’ll need to hear the tape. And when I
to their numbers in the population. false impression by the court that heard the tape and played the tape in
This over-representation makes it a person is proficient in Australian court—the transcript was nonsensical
more imperative to address the Standard English (Cooke, 2009, p. 28). because they couldn’t understand
potential for language difficulties in what this bloke was saying. He had a
communicating with the court. Respondents noted that Aboriginal broad, guttural Aboriginal accent. He
English varies in strength from place was speaking English but they were
to place, from significant differences just misunderstanding what he was
ABORIGINAL ENGLISH
with Australian Standard English in saying. And at the end of playing the
CHARACTERISTICS tape, I said, well your argument is based
remote areas to communities, such
RIGHTS VERSUS REALITY |
as Palm Island, where respondents on these passages but it’s just not right.
GENERAL What he said in those was A, B, C, and
said they had no difficulty
So what is the nature of Aboriginal communicating with locals. Age is they were perfectly logical and made
English that causes communication also a factor, as it was noted by all sense. But I think that was because I
breakdowns? Aboriginal English respondents that Elders have ‘very could understand what he was saying
encompasses verbal and non-verbal good English’ and are very well … he certainly could give his evidence.
communication, for example, there educated.
are cultural differences between
6
The three issues most commonly Right. Now Cedric, I want to ask Prosecutors and registry staff have to
recognised by respondents were you some question[s] about what be careful that they, either through
gratuitous concurrence, silence and happened at Jay Creek the other day. having little time for consultation or
avoidance of eye contact. This may Do you understand that? – Yes. lack of awareness, do not mistake
be because they are the easiest to gratuitous concurrence for an
Right. Now it’s in relation to the
spot in practice. Other matters about understanding of the situation
death of [that dead fellow]. Do you
word meanings and relationships are by a witness. Judges and lawyers
understand that? – Yes.
hard for an observer to spot unless said that it is difficult to work out
they are fully aware of the linguistic Right. Now I want to ask you some whether a person has understood a
and cultural background of the questions about the trouble out there conversation or question or simply
speaker. but I want you to understand that you agreed out of politeness. This was
don’t have to answer any questions at particularly an issue with children.
A number of respondents reported all. Do you understand that? – Yes. Those in the profession who had
that these three issues are not little experience with Indigenous
Now. Do you have to tell me that story?
restricted to Indigenous witnesses witnesses had trouble noticing
– Yes.
and were exhibited by other communication issues.
cultures, particularly migrants Do you have to, though? – Yes.
and descendants from South East Do you, am I making you tell me the SILENCE AND AVOIDING EYE
Asian, Melanesian and Polynesian story? – Yes. CONTACT
backgrounds. Currently, there
Or are you telling me because you want Silence can indicate that the
appears to be no government or
to? – Yes. person is considering the answer,
academic work which supports
disapproval with the question,
this conclusion. This may simply Now I want you to understand that you
discomfort with the surroundings, a
be a matter of the issue not being don’t have to tell me, right? – Yes.
cultural inability to discuss a topic, or
investigated.
Now do you have to tell me? – Yes. misunderstanding of the question
As this case demonstrates, ‘Do you (Eades, 1992, p. 46). Silence is easily
GRATUITOUS CONCURRENCE
understand?’ as a question is useless; misused by a cross-examining
Gratuitous concurrence, or counsel as a means of making a
the only reliable answer to that will
suggestibility, occurs when a person witness appear untrustworthy
be ‘no’. (CJC, 1996, p. 22)
agrees with the questioner regardless or acquiescing to the barrister’s
of whether the questioner’s Unfortunately gratuitous statements (Eades, 1995). Once again
statement was true or false. This can concurrence can make it easy for a the CJC has a good example from
occur in an Indigenous context either cross-examining counsel to discredit the Pinkenba Six case (Crawford v.
out of respect for the questioner, a witness by getting them to agree Vernardos & ors (PS 2615-2650 or
creating a positive atmosphere with a statement that contradicts 1994), Magistrates Court Brisbane, 24
by being agreeable, avoiding the rest of their testimony. The February 1995, unreported), where
confrontation, or because the listener mechanism is to provide leading silence is followed by gratuitous
was confused by the question (Eades, questions that require a yes/no concurrence:
1992, p. 26). Gratuitous concurrence response. The existence of gratuitous
is extremely common and situations concurrence makes it highly likely Counsel:… I’d suggest the reason to
can appear almost comical were it that the reply will be ‘yes’ (Eades, you, because you don’t want everyone
not for the circumstances as a CJC 1995; 2008, p. 96). Respondents to know the little criminal that you
example demonstrates: identified gratuitous concurrence as are, do you? That’s the reason, isn’t it?
the most common communication Isn’t it? Isn’t it? Your silence probably
One clear example which took place answers it, but I’ll have an answer from
issue both in and out of the court.
during a police interview rather than you. That’s the reason, isn’t it?
It is easy to mistake gratuitous
| RIGHTS VERSUS REALITY
7
Similarly, avoiding eye contact is a 1. An interpreter should be through intent or ignorance, a
form of respect in Indigenous culture provided for an Aboriginal defence counsel can manipulate the
which is mistaken by Westerners as person ‘unless he is fluent in linguistic characteristics of Aboriginal
a sign of sullenness, dishonesty and English as the average white English to discredit a witness. The
guilt. An Aboriginal witness who man of English descent’. Handbook, along with other court
avoids eye contact is an easy target publications, has tried to educate the
2. A ‘prisoner’s friend’ should be
for a savvy defence counsel (Eades, legal profession about these issues
present for the interrogation.
1995; 2008, pp. 115-116): and to provide solutions.
This can be the same person
as the interpreter but should
You’d lie, wouldn’t you, to get even with
the police, wouldn’t you? – No.
be ‘someone in whom the RIGHT TO AN
Aboriginal has apparent INTERPRETER
I beg your pardon? – No. confidence, by whom he will
You wouldn’t. Why can’t you look at feel supported.’ INTERNATIONAL LAW
me? Has someone told you not to look
3. The officer should ask the The UN recognised the need for
at me? Have they? – No.
Aboriginal person to explain the an accused to understand court
I beg your pardon? – No. caution back to them in detail proceedings and be understood
Why can’t you look at me? I might not in their own words to ensure by the court in the International
be the prettiest picture in the world, but they understand its terms. Covenant on Civil and Political Rights
why can’t you? Is it because you think article 14 and discrimination on the
4. Avoid leading questions. basis of language is prohibited under
that I’ll see things on your face that
show you’re lying? Well? Is it? – No. (CJC, article 26:
5. Confessions should be
1996, p. 25)
supported by other 1. All persons shall be equal before
There are other non-verbal cues (JAG, corroborating evidence. the courts and tribunals. In the
2000, p. 32) but it takes a well trained determination of any criminal
eye to identify and understand These are only guidelines not charge against him, or of his
these signals and they are difficult pre-requisites and should be used rights and obligations in a
to incorporate into the trial record. when the circumstances identify the suit at law, everyone shall be
As a magistrate said, he could not potential need for caution (Coulthard entitled to a fair and public
write in a judgement that ‘I accepted v. Steer, (1981) 12 NTR 13, per hearing by a competent,
his testimony because he raised his Muirhead J). A record of interview or independent and impartial
eyebrow in a particular way.’ a confession is not inadmissible if the tribunal established by law.
Guidelines are not followed (Gudabi
v. R (1984) 52 ALR 133). There is 3. In the determination of any
ANUNGA GUIDELINES
evidence that the Anunga Guidelines criminal charge against him,
There is longstanding awareness of are implemented inconsistently and everyone shall be entitled to the
the communication problems that are usually only used when a person following minimum guarantees,
arise in relations between Indigenous has a poor understanding of English in full equality:
and non-Indigenous persons, even rather than when they are simply (a) To be informed promptly
though there was no recognition not a speaker of Australian Standard and in detail in a language
of Aboriginal English as a linguistic English (Douglas, 1998, p. 34). There which he understands of the
dialect. In 1976, Forster J, (R v. Anunga have also been other attempts to nature and cause of the charge
(1976) 11 ALR 412 at 413), suggested develop guidelines for interviewing against him;
a set of guidelines for police officers Indigenous persons (Powell, 2000a,
to follow when interviewing (f) To have the free assistance
2000b).
Aboriginal people. These Anunga of an interpreter if he cannot
RIGHTS VERSUS REALITY |
8
THE LAW IN QUEENSLAND Section 613 includes the inability PROVISION OF INTERPRETERS
to speak English (Ngatayi v. R (1980)
The language of a court is difficult Interpreters are essential for
147 CLR 1), although the situation
for anyone but especially so for a the progress of a trial involving
can be rectified by the provision of
person who has come from a remote Indigenous witnesses, as a Cairns
an interpreter. The jury must decide
community. The Criminal Code Act magistrate noted: ‘If you’ve got a
whether the accused is capable or
1899 provides that a case cannot good interpreter it might take a bit
able to understand the proceedings
proceed for ‘want of understanding longer but it works and you know
with a view to make a defence. If
of the accused person’ (s.613); they’re understanding.’ Despite this
the court can remove the inability
they would not be able to follow however, Queensland is very poorly
to understand via, for instance,
proceedings or instruct their counsel: serviced by Indigenous interpreters.
the provision of an interpreter,
s.613 Want of understanding of then the section does not apply. Australia has a national accreditation
accused person Any of the parties can raise the system for interpreters: the
issue of want of understanding National Accreditation Authority
(1) If, when the accused person
(Kesavarajah v. R (1994) 181 CLR for Translators and Interpreters
is called upon to plead to the
230); it is not necessarily, as most (NAATI). NAATI currently provides
indictment, it appears to be
assume, exclusively the domain professional accreditation testing
uncertain, for any reason,
of the defence counsel. However, in 61 languages (NAATI, 2009).
whether the person is capable of
the onus of proof that the want of Most courts agree that the third
understanding the proceedings
understanding exists, rests with the level, professional accreditation, is
at the trial, so as to be able to
accused (R v. Vernell (1953) VLR 590). the minimum acceptable standard
make a proper defence, a jury of
Respondents knew about the section for court interpreters. Indigenous
12 persons, to be chosen from
but said it was rarely, if ever, raised in languages are not accredited at this
the panel of jurors, are to be
court. level because they fall under the
empanelled forthwith, who are
category of special languages for
to be sworn to find whether the The common law also recognises
which a less rigorous recognition
person is so capable or no. that a non-English speaking accused
status is usually provided. According
(2) If the jury find that the needs an interpreter (R v. Johnson
to the NAATI Online Directory
accused person is capable of (1987) 25 A Crim R 433). The court
only four Queensland languages
understanding the proceedings, has the discretion to allow an
have recognition: two Aboriginal
the trial is to proceed as in other interpreter for an accused, but failure
languages—Dyirbal and Wik
cases. to provide an interpreter may result
Munken—and two from the Torres
in a stay in proceedings (Ebatarinja
(3) If the jury find that the person is Strait—Torres Strait Islander Kriol
& anor v. Deland & ors (1998) 194
not so capable they are to say and Kala Lagaw Ya (NAATI, 2010).
CLR 444). There is no right to an
whether the person is so found Wik interpreters were given para-
interpreter for a witness in criminal or
by them for the reason that the professional status in 2009, which
civil cases in Queensland. However,
accused person is of unsound is a level between recognition
Indigenous Queenslanders rarely
mind or for some other reason and professional accreditation
appear in civil matters4. Ideally the
which they shall specify, and the (Magistrates Court of Queensland,
accused and the jury should be
finding is to be recorded, and 2009, p. 7). Recognition has also been
able to understand the evidence
the court may order the accused given to one person in Pukapukan (a
given by a witness, but the final
person to be discharged, or may Cook Islander language commonly
decision to allow an interpreter for a
order the person to be kept in spoken in Cairns and Townsville) and
witness still rests with the court (R v.
custody in such place and in one in the pidgin/Creole Hiri Motu or
Johnson). The court can instruct the
such manner as the court thinks Police Motu from Papua New Guinea
state to pay for an interpreter for a
fit, until the person can be dealt (PNG) which is spoken in the Torres
| RIGHTS VERSUS REALITY
4
Cairns registry staff reported that they only see Indigenous parties in domestic violence, child custody or car loan cases.
9
between providing migrant versus ABORIGINAL ENGLISH not only identify communication
Indigenous interpreters: INTERPRETERS breakdowns between Australian
No interpreters can be provided for Standard English and Aboriginal
• there is usually a large pool from English, such as gratuitous
Aboriginal English for a number of
which potential interpreters for concurrence, but that they also point
reasons: Aboriginal English sounds
migrants can be drawn—the out misinterpretations of what a
like Australian Standard English,
communties [sic] of origin have person meant.
thus a jury listening would not
thousands or millions of speakers
understand why an interpreter said
rather than hundreds or dozens; Judges said they would never allow
something different to what they
a facilitator or cultural interpreter
• there is a high rate of bilingualism heard the witness say; and, the
to be employed by the court; they
among migrants belonging to differences in the language relate
would have to be presented as an
most of the other major language to meaning rather than interpreting
expert witness. This, of course, did
groups, as many other countries words, thus the interpreter would be
not prevent parties from employing
teach English as a second giving opinions of what the witness
an advisor to assist the lawyers by
language in school; intended by their statement rather
alerting them to miscommunication
than acting as a conduit of the words
• several of the migrant languages issues as they arise. Courts will accept
he/she spoke (JAG, 2000, p. 3). This
are studied at tertiary level in expert opinion on matters outside
assumption is based on the notion
Australia, which means that the knowledge, or ‘normal range of
of ‘referential transparency’ (also
significant numbers of the experience’ of the judge and jury (R
referred to as verbatim theory); that
English-speaking community can v. Watson [1987] 1 Qd R 440); and
expressions in one language can be
speak them; Aboriginal English falls within this
readily converted into propositions
• migrant languages are noticeably category. In the Pinkenba Six case,
and translated verbatim regardless
different from English, which Dr Diana Eades was engaged by the
of the nature of the two languages
makes the need for formal prosecution to prepare a report on
or the intercession of the interpreter
interpreting more apparent. the evidence given by the Aboriginal
(Haviland, 2003, pp. 766-767)5.
Though traditional Indigenous boys and was advised that she would
languages are also noticeably Nonetheless, suggestions have subsequently give expert testimony.
different from English, they may been made to introduce a facilitator Unfortunately, she was not called
be spoken regularly by only a to the court who would act as a as a witness and her report was
few hundred or even a dozen cultural interpreter (Cooke, 2002b; not placed before the court (Eades,
people who rarely use Australian New South Wales Law Reform 1995).
Standard English. (JAG, 2000, p. 3) Commission, 2000, 7.33). The main
An expert would normally require
promoter of the language facilitator
The need for more Indigenous some academic qualification (Clarke
for Indigenous people in Australia
interpreters is well known and v. Ryan (1960) 103 CLR 486) such as
has been Michael Cooke. Cooke has
has been requested by the Royal that possessed by Dr Cooke but not a
surveyed interpreters and found that
Commission into Aboriginal Deaths person who is only a natural speaker
they do not always act as a conduit
in Custody (1990, rec.100) and the of the language. There are only about
and that human imperfection and
Recognition, Rights and Reform: half a dozen people in Australia who
cultural sensitivities makes that
Report to Government on Native could fill this position. They would
impossible (Cooke, 2002b). He sees
Title Social Justice Measures Report have to end their academic careers
the interpreter as a ‘cultural broker’
(ATSIC, 1995). It has even been to become full-time expert witnesses
who can ‘seek an opportunity to
speculated that the long term costs to provide a solution to this problem.
clarify with the witness’, for example,
of providing interpreters would Even then, they could not cover the
that the court works in a particular
probably be less than the cost of need for their expertise in a single
way which they are unfamiliar with
mistrials and appeals (Kimberley
RIGHTS VERSUS REALITY |
5
In some US jurisdictions Spanish speaking jurors are instructed to rely on the English translation made by the official court interpreter to ensure
a consistent understanding of the evidence by the panel of jurors. While there is some argument for consistency, the practice reinforces the
characterisation of the interpreter as a ‘transparent filter’ through which meaning from one language is passed to another language (Haviland,
2003, p. 768).
10
question the interpreter’s credentials
and the validity of their opinions, It has even been speculated that
and produce their own expert to
dispute the facilitator’s testimony.
the long term costs of providing
This precludes a cultural interpreter interpreters would probably be less
being employed by the court in the
same manner as an interpreter. In than the cost of mistrials and appeals
the case of a reference to a family KIMBERLEY INTERPRETING SERVICE, 2004
member a facilitator could show
that the word ‘cousin’ in Aboriginal
English has a different meaning than be employed by the parties and not not have attempted ‘to discern what
it does in Australian Standard English by the court. The CJC recognised this a witness means or otherwise give
(JAG, 2000), but the facilitator should problem more than a decade ago: evidence to the court’ (JAG, 2000,
not determine who the person was p. 4). A training and accreditation
referring to when they spoke of their 7.33 However, the Commission course was developed by JAG and
‘cousin’. recognises that communication TAFE Queensland to build a pool
differences between Aboriginal English of facilitators from speakers of
Cooke’s suggestions may be more and Standard English speakers, both Aboriginal English. Unfortunately,
appropriate for non-adversarial and in language and style, may give rise to no one ever enrolled in the course.
nurturing situations like interpreting miscarriages of justice. In this situation Consequently, the courts were left
in the health environment (Hsieh, there is a need for someone to function to work with the Handbook without
2006). There are also those who in a formally recognised and readily facilitators; a role for which it was
believe that interpreters are already accessible role as communication never intended.
interpreting culture, and thus are facilitator between speakers of
facilitators rather than conduits, Aboriginal English and the court to Since the publication of the
when they construct the English prevent communication problems Handbook many courts have
version of the statement they which can arise between Aboriginal developed education packages
are interpreting (Laster & Taylor, English and Standard English speakers. to promote similar material and
1994, pp. 111-128). It is submitted, (CJC, 1996) other issues of cultural awareness
despite Cooke’s reassurances, that that relate to communicating with
The CJC concluded that using
a facilitator in Aboriginal English speakers of Aboriginal English. The
facilitators as officers of the court
would be inserting opinion where Supreme Court of Western Australia’s
rather than part of the legal team
expert testimony is needed. This Equity Before the Law Benchbook
would only work in a European
can occur in two ways: by stating (2009, 9.4.1) recognises gratuitous
inquisitorial court system and was
that a problem exists and giving concurrence but not Aboriginal
not suited to an adversarial system
an interpretation of what a person English. However, the court’s
(CJC, 1996, p. 47). It recommended
was intending by their statement. Aboriginal Benchbook for Western
that the Queensland Law Reform
Both are questions of opinion. Australian Courts has an extensive
Commission investigate this
While Cooke has the expertise to section on ‘Communicating
option (CJC, 1996, p. 42), but the
provide his opinion in the form of Effectively with Aboriginal English
Commission is yet to carry out such
an expert witness, this would not Speakers’ (2008, 5.11). Queensland
a project.
always be the case. Anyone who has the Supreme and District Court
was able to intervene when they The original goal of JAG in 2000 was Benchbook (Supreme Court of
saw a communication breakdown to introduce an alternative method Queensland, 2010) and the Equal
should also be subject to the same with facilitators working as part Treatment Benchbook (Supreme
examination of their own credentials of the defence and prosecution Court of Queensland, 2005). Other
| RIGHTS VERSUS REALITY
and the validity of their opinions teams. These non-experts would such publications include the Equity
as any other expert witness. As advise the barristers in their team Before the Law Benchbook from New
previously mentioned, in the same when a communication breakdown South Wales (Judicial Commission of
manner, the disagreeing party had occurred and then suggest a New South Wales, 2006). There have
should be able to produce their own solution using the Handbook (JAG, also been attempts to improve the
expert to dispute the facilitator’s 2000, p. 3). This was not a cultural recognition of Aboriginal English in
testimony. Thus they would have to interpreter as the facilitator would non-criminal matters such as native
title hearings (Byrne, 2003).
11
CONCLUSION
Australia has a national system
of accreditation of professional
interpreters but very few Indigenous
languages in Queensland have
programs in place to allow for
accreditation of interpreters.
Aboriginal English does not lend
itself to interpretation in the same
manner as a traditional or migrant
language. In particular, its similarities
to Australian Standard English
would require the interpreter to
make judgements as to a speaker’s
intentions rather than simply act as a
language conduit.
12
PART 2 —OUTSTANDING
ISSUES
There are a number of issues that need to be addressed:
• intervention by the bar or the bench in court proceedings to clarify communication breakdowns;
issues with interpreters were raised pre-trial and police interviews as well region. It would be more reliable to
in interviews that equally apply as interpreting in courtrooms. use linguistic anthropologists to do a
to Indigenous interpreters. First, physical survey of communities.
interpreters can be unprofessional, Thus training is deficient for all
especially when they do not carry participants in the criminal process It could also be argued that training
out their role as a language conduit and professional interpreters are rare interpreters could produce skills
and start to participate in the in North Queensland. Unfortunately, and employment dividends as the
case. Cairns Magistrates expressed no one agency can rectify the lack of qualified person could work with
13
all government agencies that deal think in the case of judges it’s a general complained that this ‘corporate
with speakers of their language, not educational tool and isn’t something knowledge’ wasn’t being passed on
just the courts. It is likely that the that we would use on a daily or even to new magistrates in a systematic
amount of interaction between these monthly basis, and I certainly don’t take manner.
agencies and a remote community it to court with me and refer to it in any
would produce sufficient work for a great detail. No one had seen the Handbook used
full-time interpreter position. in a courtroom. However, registry
Retention of the information in
staff referred to specific magistrates,
the Handbook was also poor. For
usually those who sit on circuit
example, one respondent said
courts in remote locations, who
RECOMMENDATIONS the Handbook needed examples,
knew about the issues, and one in
when it does give examples of each
particular who was able to converse
That an investigation be language issue.
with witnesses and defendants.
undertaken of the languages
Barristers, especially defence counsel,
spoken in Queensland and the Dispersion of the Handbook has
were noted for abusing Aboriginal
numbers of persons who speak varied. Most of those who used
English foibles of witnesses. It was
these languages as their first the Handbook had seen it when it
assumed the barristers were fully
language. was first published in 2000, either
aware of the issues and were using
through being given a copy if they
them to their clients’ advantage.
That the Queensland Government were on the Bench, or via cultural
However, it is also possible that the
investigate the extension of the awareness training in the first two
defence counsel were not aware
Wik Mungkan training project years after publication. One Cairns
of the Aboriginal English foibles
to other traditional Indigenous magistrate had been in that city for
and were simply taking advantage
languages. eight years and had not seen a copy
of opportunities that presented
of the Handbook. On the other hand,
themselves. We will return to this
District Court judges still receive
issue later.
a copy as part of their induction.
Cairns ODPP have only had copies
AVAILABILITY AND USE QPS and QDOC were noted by
of the Handbook for less than a
OF THE HANDBOOK respondents as lacking awareness
year. The transcribers of recorded
of Aboriginal English. Neither was
interviews use the Handbook to help
AWARENESS regarded as maliciously dealing
them work out what a person said
with Aboriginal people but rather
The initial purpose of this inquiry was in interviews. People outside JAG
evidencing two strains of ignorance.
to review the use of the Handbook usually had not seen the Handbook
Police were characterised as simply
and determine whether any changes at all. This includes members of the
being poorly trained in cultural
were needed. Those who were aware Community Justice Groups (JAG,
awareness generally, which also
of the Handbook saw no need for 2010). But even if it were available
includes differences in language.
a change or update in its content. it was clear from the feedback that
QDOC on the other hand, was
Unfortunately, the usage rates were most people would not read it6.
accused of excelling in jargon at all of
so low as to necessitate a change in
their meetings; they used language
tack. Very few people were aware All respondents recognised the need
which was barely understood
of the Handbook and those that for information on Aboriginal English;
by the lawyers let alone by the
were had usually only read it once, they just did not want to learn about
members of the Indigenous families.
most commonly as part of a one-off it by reading a Handbook; one
Both agencies provide training
cultural awareness training course. As prosecutor described it as ‘heavy
to their staff who work in remote
one District Court judge noted: going’7. Some magistrates and
communities. The QPS bases much
registry staff, who had commenced
RIGHTS VERSUS REALITY |
6
The Handbook is now only available via the internet (http://www.courts.qld.gov.au/Factsheets/M-MC-AboriginalEnglishHandBook.pdf ).
7
It should be pointed out that the Handbook is presented in plain English, clearly laid out and only 34 pages long, so this reason does not
appear very convincing.
14
The issue appears to be one of and the bar course. Some even INTERVENTION FROM
timing rather than content. It is wanted multicultural and language THE BENCH AND THE BAR
difficult to provide training when it issues, such as how to work with
is needed. As with the judiciary, the interpreters, to be mandatory. BACKGROUND
training needs to be targeted at a
time when the material will be put to CONCLUSION Given that it is extremely rare for
use rather than be provided as part a defendant to give evidence,
Everyone who works with it is almost always the case that
of generic awareness training.
Indigenous accused and witnesses allegations of misuse of language
wants to learn about cultural and involve actions by the defence
TRAINING
linguistic issues that will help counsel against a prosecution
All respondents found training in them better serve their clients. The witness. All respondents backed
language issues was inadequate Handbook is not the best method up claims by academics (Eades,
and that the Handbook was a for doing this and respondents 2008) that defence counsel misuse
poor format for learning. They prefer face-to-face training, online Aboriginal English to discredit
preferred face-to-face learning, exercises and videos. The training witnesses. However, many
online learning and videos both as had to be more than awareness- respondents conceded that defence
a training tool and demonstration raising and contain practical advice counsel should act this way to best
of the communication breakdowns. to assist the trainees to do their job. serve the interests of their client.
Training had to be practical and There was consensus that training
not just awareness-raising; it had should be targeted at those most INTERVENTION FROM THE BAR
to give advice that can be put likely to interact with Indigenous
into practice within either the people in the legal system and then Prosecutors feel that if they object
circumstances or timeframes of the it should be provided at induction too much they will lose the
justice system. Similarly, the CJC and supported by annual refresher confidence of both the bench and
found that just as the legal system courses. There was also support the jury. As a prosecutor explained:
lacked knowledge of Indigenous for introducing the material into
I can understand prosecutors’
culture, the Indigenous providers of university courses and continuing
hesitation to object too frequently
cross-cultural training did not know legal education. Ultimately these
because of, one, the impression you
enough about the legal system are resource issues for government
are going to leave on a jury, who aren’t
to make their courses relevant to departments and professional
aware of this concept, is that you don’t
their audiences and did not provide organisations.
like the answer.
solutions (CJC, 1996, p. 33).
RECOMMENDATIONS It only emphasises it more if in fact they
Respondents said training was only still do give the same answer.
needed for those who worked with The best opportunity for rescuing
the Indigenous community—those New training material be a witness’s position is to review the
in North Queensland courthouses developed for Aboriginal English material through re-examination. This
or on circuit, both in induction and including a video and online mechanism allows a barrister to ask
annual refresher courses. Calls for training tools. clarifying questions to the witness
training carried the caveat that to repair any misinterpretation of
registries were generally understaffed Government and judicial training
their evidence which may have
and were thus unable to release be targeted to coincide with the
arisen via intentional or unintentional
staff for training without additional posting of individuals to positions
language breakdowns during cross-
resources. In addition, staggered where they are likely to be
examination. As one ODPP barrister
provision of any training meant that exposed to speakers of Aboriginal
noted:
there was no standard knowledge English.
| RIGHTS VERSUS REALITY
within the registry. Thus, all these I had a murder trial… defence were
Training in Aboriginal English and
recommendations are subject to saying to him [the witness] ‘he was
generic language policy issues,
resourcing. Some judges, magistrates angry, wasn’t he?’ And they were
including the use of interpreters,
and lawyers wanted the universities saying ‘yes, yes he was angry.’ But in
be included in undergraduate
to address the general ignorance of re-examination you can clarify: “Well
law and justice courses and in
these issues by the legal profession what was it that you saw that made
continuing legal education for
by incorporating the training into the you think he was angry?” (Cairns
members of the profession.
law curriculum, legal practice courses prosecutor)
15
It should be noted that the … (b) any other matter instructions on the use of interpreters
Handbook was written specifically about the witness the court in the Queensland Police Service
to assist barristers to rephrase considers relevant, including, Operational Procedures Manual.
questions to allow for clarification for example, age, education,
of miscommunication. Perhaps level of understanding, cultural JURY DIRECTIONS
this is not clear for the readers of background or relationship to
Judges have the added problem
the Handbook and is something any party to the proceeding.
of being able to unfairly influence
that could be communicated
(4) In this section— a jury. In this regard they face two
better through some other training
improper question problems. Firstly, a judge cannot
method.
means a question that uses raise a matter themselves; if a party
inappropriate language or does not introduce the concept of
INTERVENTION FROM THE BENCH
is misleading, confusing, language problems to the jury then
There was disagreement on annoying, harassing, the judge cannot direct the jury in
the extent to which judges and intimidating, offensive, relation to the matter. Secondly, a
magistrates should intervene to oppressive or repetitive. judge’s direction may unfairly skew
clarify language problems or to [emphasis added] the jury members’ interpretation
prevent abuse of an Aboriginal of evidence. For example, pointing
English speaker. The issue of poor As of 2003, if it is a child witness out that a witness’s statements
rates of intervention from the bench s.21AH(4) requires that the could have a different meaning, not
has also been recognised in native magistrate or justice must ‘disallow only makes a judgement about the
title cases (Byrne, 2003, pp. 8-10). a question that may be disallowed veracity of a witness’s statement,
None of the barristers interviewed under section 20 or 21’. but could lead to a jury questioning
could remember having seen a judge the whole testimony of the witness.
Judges and magistrates do not
intervene from the bench on one of Prosecutors want judges to develop
want to ask questions in a manner
these matters. Court registry staff on a standard instruction to the jury
that would provoke an appeal.
the other hand, could clearly point to on the basis that the weight of
Magistrates said they will often
magistrates having taken steps such judicial comment is better than
intervene to clarify questions for
as, rephrasing the question given to simply having a barrister point out
child witnesses. For example, often
a witness. a language difficulty. This issue is
an Aboriginal witness is interrupted
enlarged by the rarity of Indigenous
Section 21 of the Evidence Act 1977 when they are simply waiting to
jury members.
(Qld), empowers a court to disallow consider their answer and the
an ‘improper question’, that is one magistrate or judge intervenes The Queensland Supreme and
that was considered ‘misleading, to give the witness a chance to District Court Benchbook already
confusing, annoying, harassing, answer the question. They also felt provides the following jury ‘directions
intimidating, offensive, oppressive safe in occasionally asking counsel before summing up’ for ‘Translation
or repetitive’ given the character of to rephrase a question, stopping and Interpretation’. The Northern
the witness, including their cultural a series of yes/no questions, or Territory Supreme Court Justice,
background: asking a witness to explain what Dean Mildren, was the first to put
they had been asked to ensure forward a standard jury direction
s.21 Improper questions they understood. For example covering issues relating to Aboriginal
a magistrate said that he felt witnesses (Mildren, 1997) and a
(1) The court may disallow a
comfortable asking: ‘Tell me if I’m version of this direction was included
question put to a witness in
right, Ms Prosecutor, but I think you in the Aboriginal Benchbook for
cross-examination or inform a
mean this…’ Similarly, judges felt Western Australian Courts (Supreme
witness a question need not be
they had a duty to make sure the Court of Western Australia, 2008). The
answered, if the court considers
RIGHTS VERSUS REALITY |
defence counsel are very clear in CJC reviewed the Mildren Directions
the question is an improper
what they are asking. Magistrates and put forward two suggested jury
question.
faced the added issue of police directions (CJC, 1996, p. 44), one for
(2) In deciding whether a question prosecutors being poorly trained Queensland Aboriginal witnesses
is an improper question, the in dealing with witnesses. This is (Mildren accommodated Northern
court must take into account— despite the inclusion of detailed Territory Indigenous culture) and one
for Torres Strait Islander witnesses.
16
Neither was taken up by the judiciary clarify an issue. But evidence from This leaves the re-examination as
or the government. Neither was respondents demonstrates that the best place for rectification of
adopted in Queensland. The West in practice this is insufficient. The the communication breakdown. If a
Australian Court of Criminal Appeal human elements of the courtroom point is clarified then the clarification
effectively quashed the use of the such as perceptions of jurors, is introduced into evidence,
Mildren directions in Stack v. the combined with the real chance of sufficient clarification should avoid
State of Western Australia ((2004) 29 triggering an appeal means that a dispute over meaning, it will not
WAR 526). Murray J said that the better mechanisms are needed. Jury rely on a jury direction and does not
direction should not have been directions are not available without involve an objection during cross-
made ‘without any substratum of evidence from an expert witness. examination. As has been noted, the
fact properly proved before the The latter is very expensive and any Handbook attempted to provide just
jury in the ordinary way’ ((2004) solutions that rely on additional such solutions, but more is clearly
29 WAR 526 at [19]); the matters funding are unreliable. We have also needed. As these solutions relate to
should have been proved via expert seen that it is exceedingly difficult the actions within a trial the solution
testimony. In making the direction for police to take effective witness must come from the participants.
without expert testimony the trial statements when they are equally First, a consistency of understanding
judge was introducing concepts to ill-equipped with interpreter support of the communication issues
the jury which would place them and also face potentially new would improve the effectiveness
in a position of making amateur languages. Thus, it is unavoidable of intervention by both the bench
judgements as to the occurrence that Indigenous people who speak and prosecutors. Second, judges,
of breakdowns in communication Aboriginal English will be witnesses magistrates and lawyers should
and the true intent of the witness in trials. workshop ideas to develop viable
((2004) 29 WAR 526 at [19]). All options for clarifying issues in re-
judges and magistrates contacted in Some respondents recommended examination. Any solutions produced
this research agreed that a direction juror training in Aboriginal English. from this exercise will then produce
would not work and that expert This on its own would not work as a circular problem; once developed
testimony was needed before a jury it would still leave jurors making how do we train new judges,
could receive instruction on a matter their own determination as to magistrates and lawyers?
of Aboriginal English. whether a person is in fact an
Aboriginal English speaker; they
Prosecutors also raised the possibility may make interpretations about
of having Indigenous witnesses witness statements based on false RECOMMENDATION
treated as ‘special witnesses’ assumptions. The solution must be
That a workshop of selected
under section 21A of the Evidence based on evidence before the court.
judges, magistrates and barristers
Act 1877. This would give the We know four requirements:
be held to workshop acceptable
court more leeway to intervene.
• the information must be court mechanisms for intervention
However, they concluded that
introduced by one of the to reduce the incidence of
not all Aboriginal witnesses could
parties during the trial; misinterpretation of Aboriginal
qualify as special witnesses and it
English speaking witness’s
would be very ‘paternalistic’ to try • disputes over the meaning of
evidence.
and use this method to resolve the a statement must be avoided
communication breakdowns. as they would rely on expert
evidence;
CONCLUSION
• the solution cannot rely on a
The Handbook provides the means direction to the jury; and
to rephrase questions to avoid
| RIGHTS VERSUS REALITY
• excessive interruptions of
communication breakdowns, for
cross-examination by either
example, gratuitous concurrence
the bench or the prosecution
can be avoided by using a non-
will create a counterproductive
intimidating tone, avoiding yes/
perception.
no questions, etc. (JAG, 2000, p.
9). Therefore, the bench and the
prosecution have the means to
17
UNDERSTANDING OF Cairns Registry staff who have from any promise, and nothing to
COURT PROCESS been on circuit noted the perennial fear from any threat that may have
problem that lawyers do not have been held out to induce you to make
It would be fair to say that the law is time to explain things in detail any admission or confession of guilt.
seen as arcane by the lay populous. to clients before a hearing, and Anything you say will be taken down
Indigenous people have even less of depositions clerks do not have time and may be given in evidence at your
an understanding of court processes to deal with accused and witnesses. trial. Do you wish to say anything in
than the members of mainstream Also defendants and witnesses turn answer to the charge or enter any
society and some legal concepts up late. It was also noted that people plea?’.
are foreign to Aboriginal culture in the Cape are not getting the right
This wording may once have
(Wurm, 1963, pp. 6-9). Respondents amount of information on the court
reflected colloquial English but this is
described some Indigenous process. Ideally, justice coordinators
no longer the case.
witnesses as looking ‘absolutely should meet with magistrates and
bamboozled’ by what was going on clients before court starts even There was some consensus that
around them and that it was difficult the day beforehand. The registry money spent towards better
to get remote community members staff said that this applies to Cairns preparation will lead to cost savings
to participate in the proceedings, as well as on circuit and that the in the long run. This would include:
say more than ‘I don’t remember’ or situation is even more difficult in the
get the witness to speak. Magistrates Children’s Court. JAG has advised • induction of people who will
noted that rape or domestic violence that the Aboriginal and Torres Strait face court on circuits;
witnesses will often just sit in the Islander Legal Service is providing
• training witnesses (not
stand and say nothing at all. Linguists a new service called the Aboriginal
coaching) in the nature of
have noted that one response to the Interview Friend to perform a similar
cross-examination, such as,
intimidation of appearing in court role with police officers.
knowing that they do not need
can be for the Indigenous person to to answer questions that they
speak very softly (Edwards, 2004, p. The language of the court is always
do not understand;
104). A prosecutor said that is very difficult for anyone to understand.
difficult to expect a child who has The issue is exacerbated by the • regular pre-trial conferencing
never seen an elevator before to be comparatively poor exposure to, and with children in the
calm and collected for court in a big understanding of, the legal system comfortable environment of
city: by residents of remote communities. their home community rather
It has even been argued that the than delaying the conference
I have concerns that you can properly style of questioning used by the till their visit to the city;
assess the capacity of a child when legal profession may make it difficult
• send qualified psychologists
you just brought them out of their to extract information from their
to communities to assess
community into Cairns and said: ‘Right, Indigenous clients (Eades, 1996).
the ability of children to give
let’s assess your intellect and your Even so, some respondents noted
evidence.
ability to answer questions’. (Cairns that the court system seems to
prosecutor) actively increase the difficulty The value of interviews in a
for people to understand by the comfortable surrounding will not
Some other key points include a only be psychologically beneficial
introduction of sections such as
cultural inclination to not challenge but there is evidence from the Koori
section 104 of the Justices Act 1886,
another person’s or their own claims Court in Victoria that a ‘culturally
which relates to the examination of
as to the truth of a matter. This would appropriate’ court setting can
witnesses in criminal matters, and
be regarded as shameful, especially significantly reduce the incidence of
requires the use of a fixed set of
when questioning the claims of miscommunication (Stroud, 2005).
words:
elders. Similarly, it is unacceptable to
RIGHTS VERSUS REALITY |
20
20
SUMMARY OF
RECOMMENDATIONS
1
That an investigation be undertaken of
the languages spoken in Queensland and
the numbers of persons who speak these
languages as their first language.
7 That the Queensland Government
investigate the feasibility and veracity of
programs to better prepare Indigenous
persons for participation in court
including, but not limited to:
3
answer a questions that they do not
understand;
New training material be developed for
Aboriginal English including a video and • regular pre-trial conferencing
online training tools. with children in the comfortable
environment of their home
community rather than delaying
the conference till their visit to the
4
Government and judicial training be
city;
targeted to coincide with the posting
of individuals to positions where they • sending qualified psychologists to
are likely to be exposed to speakers of communities to assess the ability of
Aboriginal English. children to give evidence.
5 8
Training in Aboriginal English and generic That the existence of new Creoles and
language policy issues, including the use of the incidence of mixed language use,
interpreters, be included in undergraduate especially by children, be examined by
law and justice courses and in continuing qualified linguistic anthropologists with
legal education for members of the a view to determining the veracity of
profession. the claims and as a first step in seeking
solutions.
6
That a workshop of selected judges,
magistrates and barristers be held to
workshop acceptable court mechanisms
for intervention to reduce the incidence
of misinterpretation of Aboriginal English
| RIGHTS VERSUS REALITY
21
REFERENCES
Aboriginal and Torres Strait Islander Department of Justice and Attorney- Haviland, J. B. (2003). Ideologies of
Commission. (1995). Recognition, General. (2010). Feedback from Language: Some Reflections on
Rights and Reform: A Report to Community Justice Groups. In D. M. Language and US Law. American
Government on Native Title social Lauchs (Ed.) (email attachment ed.). Anthropologist, 105(4), 11.
Justice Measures. Canberra. Brisbane.
Hsieh, E. (2006). Conflicts in how
Australian Bureau of Statistics. (2006). Douglas, H. (1998). The Cultural Specificity interpreters manage their roles in
4713.0 – Population Characteristics, of Evidence: The Current Scope provider-patient interactions. Social
Aboriginal and Torres Strait Islander and Relevance of the Anunga Science & Medicine, 62(3), 10.
Australians. Canberra. Guidelines. University of NSW Law
Judicial Commission of New South
Journal, 21(1), 28.
Australian Institute of Aboriginal and Wales. (2006). Equity Before the
Torres Strait Islander Studies. (2005). Eades, D. (1988). They don’t speak an Law Benchbook. Sydney: Judicial
National Indigenous Languages Aboriginal language, or do they? In Commission of New South Wales.
Survey Report. Canberra. I. Keen (Ed.), Being Black: Aboriginal
Kimberley Interpreting Service. (2004).
Cultures in Settled Australia.
Byrne, J. (2003). Indigenous Witnesses Discussion Paper: Indigenous
Canberra: Aboriginal Studies Press
and the Native Title Act 1993 (Cth). Interpreting Services. Perth.
Vol. 2. National Native Title Tribunal Eades, D. (1992). Aboriginal English and
Laster, K., & Taylor, V. (1994). Interpreters
Occasional Papers Series. Canberra: the Law: Communicating with
and the Legal System. Annandale,
National Native Title Tribunal. Aboriginal English Speaking Clients:
NSW: Federation Press.
A Handbook for Legal Practitioners.
Cooke, M. (2002a). Indigenous Interpreting
Brisbane: Queensland Law Society. Magistrates Court of Queensland. (2009).
Issues for Courts. Carlton. Victoria:
Magistrates Court of Queensland,
Australian Institute of Judicial Eades, D. (1995). Cross Examination of
Annual Report 2008-2009. Brisbane.
Administration. Aboriginal Children - The Pinkenba
Case. Aboriginal Law Bulletin, 3(75), McConvell, P., & Thieberger, N. (2001).
Cooke, M. (2002b). The legal interpreter
10-11. State of Indigenous Languages in
as communication facilitator and
Australia - 2001. Canberra.
cultural broker. Paper presented at Eades, D. (1996). Legal recognition
the AUSIT Conference 2002, Power of cultural differences in Mildren, D. (1997). Redressing the
to the Profession. communication: The case of Robyn Imbalance Against Aboriginals
Kina. Language & Communication, in the Criminal Justice System.
Cooke, M. (2009). Anglo/Aboriginal
16(3), 215-227. Criminal Law Journal, 21, 7-22.
Communication in the Criminal
Justice Process: A Collective Eades, D. (2003). I don’t think the lawyers National Accreditation Authority for
Responsibility. Journal of Judicial were communicating with Translators and Interpreters. (2009).
Administration, 19(1), 10. me - Misunderstanding cultural NAATI Recognition Information
differences in communication style. Booklet. Retrieved 28 March
Criminal Justice Commission. (1996).
Emory Law Journal, 52, 26. 2010, 2010, from http://www.
Aboriginal Witnesses in Queensland
naati.com.au/pdf/Booklets/NAATI_
Criminal Courts. Brisbane: Criminal Eades, D. (2006). Lexical struggle in court:
Recognition_booklet.pdf
Justice Commission. Aboriginal Australians versus the
state. Journal of Sociolinguistics, National Accreditation Authority for
Department of Justice and Attorney-
10(2), 153-180. Translators and Interpreters. (2010).
General. (2000). Aboriginal English in
NAATI Online Directory. Retrieved
the Courts. Brisbane. Eades, D. (2008). Courtroom Talk and
28 March 2010, from http://mail.
Neocolonial Control. Berlin: Mouton
Department of Justice and Attorney- naati.com.au/pdsearch/pdsearch.
de Gruyter.
General. (2009). Count of Defendants aspx
broken down by Indigenous Edwards, B. (2004). Putuna Kulilpai:
RIGHTS VERSUS REALITY |
22
Noaks, L., & Butler, I. (1995). Silence in Supreme Court of Queensland. (2005).
Court? Language Interpreters in the Equal Treatment Benchbook.
Courts of England and Wales. The Brisbane: Supreme Court of
Howard Journal, 34(2), 12. Queensland.
23
Dr Mark Lauchs
School of Justice
Queensland University of Technology