'Can you speak English properly?' Linguistic gatekeeping and interpreter use in the justice system
Creators: name: MACFARLANE, Joseph
Publisher: name: RMIT University
Year: 2024
Subjects: classificationCode: 470321
subject: Translation and interpretation studies
classificationCode: 480501
subject: Access to justice

description: With over 300 languages spoken in Australia, including more than 100 Indigenous languages, public institutions must cater for a linguistically diverse population. Within the justice system, this is typically done through the provision of interpreting. Yet while the number of interpreters may have increased, problems remain given that police, judges, and lawyers often retain discretionary power in defining when and under what circumstances access to interpretation is warranted. This also entails defining the nature and extent of a person's linguistic disadvantage before the law. Previous research has argued that the underuse of interpreters and unawareness about linguistic disadvantage within the justice system is symptomatic of untrained police, judges and legal practitioners unable to accurately assess the English proficiency of language minoritised witnesses, suspects, and clients. While hard to dispute, this research argues that the denial of interpreters and the overlooking of linguistic inequality is symptomatic of a wilful ignorance about the language backgrounds of minoritised people in the justice system, and the nature of linguistic discrimination. This structural ignorance is fundamentally tied to the reification and normalisation of a single 'Official' language which governs State institutions and underpins how language difference and linguistic disadvantage is recognised and responded to. 

Drawing on Bourdieu's conceptualisation of an 'Official' language of public institutions and the linguistic marketplace, José Medina's epistemologies of ignorance, and Charles Mills' conceptualisation of the racial contract, this project sought to critically analyse how powerful actors who wield linguistic gatekeeping power, respond to the diverse language backgrounds of minoritised people in the justice system. This project adopted a two-stage methodology. Stage one constituted an analysis of 40 Australian appellate criminal cases from between 2000 - 2018. A central claim within the cases selected was that a perceived language barrier and/or the denial of interpretation represented a significant source of procedural unfairness. Findings suggest that multiple institutional actors, particularly police and judges, participate in an active, culpable ignorance towards language difference and linguistic inequality which positions the hearing and speaking of minoritised languages as unwelcome and unwanted, and further embeds the systemic marginalisation of language minoritised witnesses, suspects and defendants. This constitutes a wilful blindness to difference, realised through the routinised denial of the right to interpretation and the imposition of unofficial 'English-only' rules. Moreover, where linguistic differences are acknowledged, it is done so in terms where language difference is equated with personal deficit. That is, linguistic diversity is problematised, rather than valued in any meaningful way within the justice system.

Stage two of the research methodology comprised semi-structured qualitative interviews with defence lawyers working in Victoria and the Northern Territory. These participants were selected to compliment the case analysis which largely emphasised the responses of police and judges. Findings illustrated that legal representatives, particularly in the Northern Territory, are keenly aware of the systemic embeddedness of linguistic exclusion and seek to work against this in their own representation. This also means that for lawyers working in the Northern Territory - primarily with Indigenous clients - engaging with interpreters, and allowing clients greater autonomy over language choice, is seen as a valuable dimension of client-centred representation. However, within a Victorian context, the role of interpreters and the opening of linguistic space to 'Other' language varieties can still be problematised as an intrusive force. This is because the interpreter is seen as an unwelcome disruption to the closed lawyer-client relationship and perceived as a threat to the interactional control lawyers often wield. This threat is also believed to undermine the fundamental professional end ethical duties of the lawyer to the court, the administration of justice and their client. In order to manage the 'threat' of an interpreter and multilingual communication generally, lawyers continue to expect verbatim translation where the interpreter acts as an objective, mechanistic conduit of words rather than an interpreter of underlying and culturally relevant meaning. This view presumes that words and legal concepts can be directly transferred without a dilution of meaning and largely ignores the highly divergent cultural contexts that can exist between lawyers and their clients.