Handbook for Judicial Officers — Diversity

In his “State of the Australian judicature” address in 2016,^[3] former Chief Justice the Honourable Robert French AC stated that equal justice as, “a necessary element of the rule of law, cannot be provided if the courts cannot appropriately respond to cultural and linguistic barriers, to access to them and engagement with them”.

The Judicial Council on Diversity and Inclusion (JCDI),^[4] established in 2014, provides advice to the Council of Chief Justices of Australia and New Zealand on matters arising from the interactions of migrants, refugees and Indigenous people with the court system.^[5] It has undertaken a number of projects designed to achieve the objective of administering equal justice in Australian courts by responding to the evolving needs of a culturally diverse society.^[6]

One such project is the development of an online training program on cultural diversity for Australian judicial officers. Judicial officers can visit the JCDI website^[7] and Judicial Commission of NSW public website^[8] for information on how to access it.

Nine modules have been designed to help broaden judicial officers’ knowledge of the ramifications of cultural diversity for their daily work.^[9] The modules aim to go beyond a simple awareness of cultural diversity and to provide judicial officers with some practical skills to perform their duties in a culturally informed and appropriate manner. To that end, the nine modules were developed using the eFront learning management system, an online training platform, hosted by the Judicial Commission of NSW. The six primary objectives of the program for judicial officers who complete it are that they should be able to:

Multicultural miscommunication can occur in myriad ways. One of the most insidious barriers to good cross-cultural communication is stereotyping. Module 3, entitled “Stereotyping, assumptions and prejudices”, provides some insight into how stereotyping can be recognised and avoided. Under s 41(1)(d) of the uniform Evidence Act 1995, the law recognises that questions are, or questioning is, improper and disallowable if there is no basis other than a stereotype based on the witness’s culture or ethnicity. This recognises that stereotyping can result in a poor assessment of a witness and ultimately lead to unfair treatment and/or outcomes.

The key to avoiding stereotyping is to question and challenge stereotypes and to focus on the individual rather than ignoring individual differences. The difficulty for judicial officers, of course, is that while they need to avoid stereotypes they also need to be informed by, and respond appropriately to, actual cultural differences.^[12]

Module 4, entitled “Intercultural misunderstandings”, examines the four main areas of misunderstanding: different communication or speaking styles, a lack of proficiency in English, hard-to-understand forms of communication such as a thick accent or silence and misunderstanding of the Australian court system.

There are two basic communication or speaking styles: the linear and the circular. Linear communication, where a person makes a point by proceeding directly from fact A to fact B is usually perceived to be the most appropriate or effective way to communicate in Australian legal contexts. However, a number of cultures consider a circular style of speaking to be a more polite or correct form of communication. To linear speakers, circular communication uses a seemingly unnecessary amount of detail to explain a point and may appear to be limited by an inability to point out when conflict has occurred; indeed it may be seen as dissembling. In non-linear speaking cultures, directness of speech may appear blunt, aggressive, impolite or even hurtful. The module identifies ways of recognising signs of unease and discomfort from a circular speaker and introduces strategies to elicit information respectfully and in a timely fashion from someone who speaks in a circular fashion.

Module 6, entitled “Hard-to-understand forms of communication”, tackles the challenges of other forms of verbal communication such as accent, intonation, inflection, volume and rate of speech. In some cultures, it is polite to talk more quietly or submissively in a formal setting. Some Aboriginal and Torres Strait Islanders may engage in “gratuitous concurrence”, a well-researched^[13] trait according to which a person appears to assent to every proposition put to them even when they do not agree. For many Indigenous people, using gratuitous concurrence during a conversation is a cultural phenomenon, and is used to build or define the relationship between the people who are speaking. However it also may be employed as a strategy when confronted by alien institutions and authority figures.^[14]

Not all miscommunication is verbal. The module also examines the cultural implications of sometimes problematic non-verbal communication, such as silence and lack of eye contact. Silence, or seeming to avoid answering a particular question, may not indicate dishonesty or evasiveness; it could simply mean a lack of understanding of what is going on or confusion about what is expected. Silence can also occur when cross-examining Indigenous witnesses who, when faced with a declarative form of questioning, may need time to process the question, marshal their thoughts and respond.^[15] Where a question transgresses cultural norms, silence may in fact be regarded as the appropriate response for members of that culture.^[16]

In Australian mainstream culture, direct eye contact can convey respect, confidence and trustworthiness. However, in other ethnic groups, avoiding eye contact may indicate respect, modesty and a wish to avoid confrontation. Being aware of such a cultural norm for a certain group of people will provide a more accurate interpretation of what is being presented in the courtroom.

The use of plain English principles can go some way to avoid intercultural miscommunication. Module 5, entitled “Plain English principles”, provides a number of useful strategies, including the avoidance of legal jargon, acronyms, idioms and slang and the occasional need to redefine legal words in plain English. There are times when the use of legal terms cannot be avoided. However, parties, witnesses and interpreters can be helped if the judicial officer, when relevant, provides a plain English explanation of a particular legal term. The core aim of plain English principles or strategies is that the judicial officer uses language that is appropriate to the listener’s language skills and knowledge, a courtesy that will inevitably enhance communication in the courtroom. Indeed as the Chief Justice of NSW, the Honourable Tom Bathurst AC, observed, the benefits of clarity of expression in the courts are not limited to only intercultural communications.^[17]

One vexed question facing judicial officers in cases with multicultural parties and/or witnesses is how to assess when interpreting assistance is required. Generally, whether an interpreter will be used is a matter for the court’s discretion. The basic rule is that the provision of an interpreter is essential whenever there is a possibility that a trial would be unfair because of the absence of an interpreter. Module 7, entitled “Assessing the need for interpreting assistance”, canvases a number of factors that could provide assistance in deciding whether an interpreter should be provided.

The module provides two checklists garnered from the Multicultural language services guidelines for Australian Government agencies^[18] and emphasises the importance of using tertiary qualified or interpreters accredited by the National Accreditation Authority for Translators and Interpreters. The issue of whether it is advisable to use the witness’s family or friends in certain circumstances is also addressed. Another problematic area is identifying the language of the party or witness. A person’s language may not be based on their country of birth or nationality and can also be fraught if the language is one that is “new and emerging”. Strategies for dealing with unaccredited interpreters are also provided.

Module 8, entitled “Working with interpreters”, provides nuts and bolts style information addressing how to work effectively with an interpreter. Preparing to use an interpreter, establishing the ground rules and dealing with interpreters in the courtroom are covered.

One issue the module highlights is the complexity of the interpreting task. While languages may share basic words and concepts there are likely to also be considerable divergences. Words may not exist in another language and legal terms or phrases in particular may have no equivalent. For example, the word “private” or “privacy” in English means “lonely” in Greek. Consequently, interpreters may need to use several words or phrases to communicate not only the original word but its meaning. Further, it cannot be assumed that the witness or a party will understand legal phraseology even if it is interpreted into their language.

During the preparation of the online training modules, the development of the proposed Australian national standards for working with interpreters in courts and tribunals was monitored.^[19] The module has gathered a range of best practices from a variety of sources, including the Judicial Commission’s Equality before the Law Bench Book.^[20]

The final module comprises a set of scenarios that will help judicial officers apply best practice cultural awareness principles. A subcommittee to the working group, which includes myself, the Honourable Justice Perry of the Federal Court, the Honourable Justice Kyrou of the Victorian Court of Appeal, the Honourable Justice Blokland of the Northern Territory Supreme Court and her Honour Magistrate Boss of the ACT Magistrates Court, provided a number of scenarios based on our own experiences that were formatted into a series of questions.

One scenario focuses on explaining cultural issues to a jury. Deciding when and how to explain the interpreter’s role to the jury can also be a complex issue. The circumstances chosen involve presiding over a jury trial in a regional location with a significant Aboriginal population where it appears that only one Aboriginal person has been empanelled in the jury to try the case.

The questions include: do you address the cultural issues about which you are concerned in the course of your opening remarks to the jury so that they can properly appreciate the evidence when it is given, or do you wait until the relevant evidence is given and then give directions specific to the issues which are raised? Or, do you say nothing?

Other scenarios in the initial version of the online training modules deal with assessing the need for, and working with, an interpreter. It is anticipated that more scenarios will be added to the list in due course as more cases and examples become available.

As was observed by former Chief Justice of Australia, the Honourable Robert French AC:

The online training modules are written in a concise, direct fashion. Although the modules can take up to three-and-a-half hours to complete, the training may be stopped and started at the discretion of the judicial officer. The program can be completed in stages to accommodate other commitments, as each module takes between 10 to 20 minutes to complete. For those who have more time or inclination to delve deeper into the program, there are a number of links to primary sources and articles that enhance the information provided.

How these diverse cultural strategies are used from case to case will more often than not rely heavily on “context and common sense”.^[22] However, it is anticipated that the online training course will add to a judicial officer’s toolkit in cases that have diverse cultural dimensions.