Open and Accessible Courts

Community engagement, public education and awareness

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Steven Rares*

1.   The topic for this session commences with a truism, “open and accessible courts.” That truism reflects a fundamental aspect of both the Westminster system of government, that is assumed in the Australian Constitution, and of the way in which courts in this country must operate. Unlike the way in which the executive arm of government functions, justice must be administered in public and judicial decision-makers must give reasons for their decisions. The judiciary is the most transparent institution in this country. Every case is heard in public. Every decision of every judicial officer is given in public with the judge’s or magistrate’s reasons. Those reasons are open to public scrutiny and criticism. The only exceptions are cases where it is necessary in the interests of justice to close the court or suppress the publication of matters, particularly in cases involving children, confidential matters or national security. There is no lack of accountability for those independent, open and reasoned decisions.

2.   Article 7 of the Universal Declaration of Human Rights 1948 recognises that:

 All are equal before the law and are entitled without any discrimination to equal protection of the law^[1].

3.   In Australia, the fundamental role of the judiciary in administering the law of the land is acknowledged in the judicial oath, namely, to do right to all manner of people according to law without fear or favour, affection or illwill^[2]. That precept is essential to the independence of the judiciary, the application of the rule of law and the protection of all persons in our country from arbitrary or capricious judicial decision-making.

4.   All persons who come before our courts, whether they were born here or migrated, and regardless of their heritage, are entitled to the equal protection and application of the law.

5.   The misguided economists at the Productivity Commission recently described the constitutional role of the third arm of government as a “service”. In the Commission’s 2014 report, Access to Justice Arrangements^[3], they argued that access to justice should be regulated by sending “price signals”, including in the form of recovering the full cost of the court hearing a case where “no public benefit [was] associated with a case.”^[4] There is always a public benefit in courts hearing cases. A decision brings finality to a dispute by applying the law to the facts of a case. Sometimes this involves the court determining what the law is for the first time.

6.   Justice is not something that in our society can be for sale, including by governments setting fees that attempt to mark price points for various categories of litigants.

7.   Anyone experienced in the administration of justice according to law is aware that litigants are not monocultural. Differences in culture and language potentially affect both the way a person can explain his or her situation, and the way in which a person with another cultural background or first language may perceive that explanation.  Courts interact with both litigants and witnesses who will not always have come from the same culture as each other, or as the judicial officer or jury.

8.   In these remarks I want to explore first, how cultural differences can have a real impact on litigation, secondly, how linguistic issues, including translation of evidence, can affect the result of litigation and, last, how the three Federal trial courts have provided persons who do not speak English as a first language some practical assistance in accessing the courts.

Cultural differences in litigation and decision-making

9.   We are all human and products of our individual backgrounds. Culture is but one aspect of those backgrounds, but it can afford a valuable insight to a court undertaking its evaluative functions, if the court is legally entitled to take into account whatever may be significant in the culture or background of a person in deciding a matter.

10.  How can a court deal with differences in cultures? Can the parties call evidence to explain how, in one culture things are done differently to another, in a way that may affect a legal outcome? How flexible and tolerant can the court system be to accommodate particular cultural or linguistic nuances in any given case?

11.  There cannot be one law for people of one culture and another law for those of a different culture. Equality under the law would have no meaning if we were to say that recognition of cultural differences in a court context should, or could, lead to different substantive outcomes in litigation under the same law.

12. That is not to say that the existence of cultural differences cannot inform a court of a reason or explanation for a person’s actions, inactions or conduct in a particular litigious context. Such considerations can, but do not necessarily, provide an important context for judicial decision-making, including an appreciation of why a person may have engaged in conduct that, otherwise, would be difficult to understand. Such an understanding may also be relevant to the exercise of judicial discretions, such as sentencing.

13.  Cultural differences can mean that one person in a court context, or even in a conversation, may not be understood by others in the same way as if all those people were engaging within the same cultural or language background. Some of that lack of precise or complete understanding between persons will be inevitable in all human interactions. The challenge for the courts is how best to address these issues, with the resources available to them, conformably with their institutional independence and integrity.

14.  A good example of how cultural differences can affect the quality of any decision‑making process in a legal context was brought home to me at the Beijing Conference of the Comité Maritime International in 2012, by an excellent paper entitled The Eastern and Western Cultural Influences on Maritime Arbitration and its Recent Development in Asia presented by Philip Yang^[5].  He was a native Hong Kong resident, Oxford educated British citizen, barrister, vice-chairman of the Documentary Committee of the Baltic and International Maritime Council (BIMCO) and chairman of the Hong Kong International Arbitration Centre. He was also a maritime arbitrator.

15.  Mr Yang opined that cultural differences remained the most important problem in international arbitration. He explained that many Asian cultures did not favour recording facts in writing, in contrast to the way in which business is conducted in Western societies. He gave as an example a London arbitration in which he sat with two retired English judges, in a reference involving a European ship owner and a Chinese shipyard. The three arbitrators had to decide whether a pro-forma contract for the building of six new bulk carriers signed on behalf of the Chinese shipyard by its senior delegate at the end of a visit to Europe was a legally binding contract. After the trip, the price on world markets of bulk carriers escalated significantly. The European party to that document asserted that what had been signed was a final contract, thus locking in the pre-rise price. And, as Mr Yang pointed out, common sense suggested that that assertion appeared to be right.

16.  During cross-examination the Chinese signatory said: “I have to sign something in order to justify the delegation’s expensive trip to Europe to my superior and the State authorities.” The witness added that both parties had agreed at the meeting that the signing of the pro forma contract would not signify a final agreement because the Chinese delegates still had to negotiate on a number of outstanding issues and to obtain approval for the deal from their superior.

17.  That answer struck the other two arbitrators as unacceptable, but Mr Yang considered that the witness’ account was corroborated by the subsequent correspondence between the parties dealing with those outstanding issues. The European party sought to explain that correspondence away by asserting that it was an attempt to renegotiate the signed pro-forma contract. The arbitral panel’s chairman drafted an award finding against the Chinese party. However, after deliberations, drawing on Mr Yang’s insights, the three arbitrators came to an unanimous award in favour of the Chinese party.

18.  The importance of the illustration was that, through his Chinese cultural background, Mr Yang understood right away, before the later evidence was tendered, that the Asian way of doing business was very different to the European. That was so even though Mr Yang, on behalf of BIMCO, had been involved for many years in drafting standard form contracts, with arbitration clauses providing for arbitrations to be conducted in London and for English law to apply.

Native title matters

19.  As general consciousness of the multicultural nature of Australian society continues to develop, it should, hopefully, continue to improve understandings between members of the various cultures that we have. Nonetheless, we have seen instances of tension where cultures clash, perhaps none more graphically than the way in which the legal system for over two centuries has interacted with the circumstances of the indigenous Aboriginal and Torres Strait Islander peoples in this country.

20.  Sometimes the court may need to consider directly the effect of a person’s culture in the resolution of litigation.  For example, in native title litigation, s 82(2) of the Native Title Act 1993 (Cth) provides that the Federal Court can take into account the cultural and customary concerns of Aboriginal peoples and Torres Strait islanders, “but not so as to prejudice unduly any other party to the proceedings”.

21.  On occasion, the parties in native title proceedings will agree upon certain cultural considerations that the Court should be alive to and can take into account. In such cases the parties will note their agreement that the Court be informed of matters such as:

• it is culturally offensive to refer by name to a recently deceased person;
• it is desirable to allow a support person to sit next to witnesses while they are giving evidence; and
• it is desirable that there be a degree of informality in the questioning. In addition, the parties sometimes inform the Court that an indigenous witness may decline to answer a question because he or she feels that it is culturally inappropriate to speak about a particular subject.

22.  Nonetheless, s 82(2) makes plain that there may come a point where, despite the Court’s awareness of differences in culture, it is necessary for the Court to require the witness to give an answer and to make findings depending on the evidence given, including whether and how he or she was prepared to answer a particular, culturally sensitive question.

23.  However, where matters involving cultural considerations arise in litigation, there are obviously constraints on how much, if anything, of such a nature will be admissible or relevant to the court’s decision in any particular case.

Interpreting interpretations

24.  As a country with over 28% of its population born overseas, Australians must recognise that their institutions, including their courts, may need to implement measures to ensure that persons who do not speak English at all, or as a first language, and whose cultural practices are likely to be different from our own, are not substantively disadvantaged in their ability to access the courts and to receive justice according to law.

25.  Interpreters will frequently assist litigants in person, including self-represented claimants for refugee status in the Federal Circuit Court and the Federal Court. Sometimes the interpreter will be competent in a particular language, but not in the applicant’s dialect, or his or her local or idiomatic usages, which may include subtle differences from the interpreter’s experience.

26.  And, of course, the interpreter assists not just the party or person to whom the interpreter is provided but also all of those involved in the litigation. The judge and the other party or parties thus have a means of communicating in court proceedings with the person requiring the interpreter, a matter essential to a proper understanding of that person’s case or evidence. This enables the person communicating through the interpreter to have a proper understanding, so far as is possible for lay persons, of the evidence of the opposing party or parties and of the issues and arguments arising in the case generally. This can extend to situations in which a mediation has been arranged so that there can be a meaningful settlement discussion between all concerned.

27.  It is important to bear in mind that interpreters in such situations require regular breaks from the stress of being the interface between a witness or party and the other persons in the proceedings who are talking. And the interpreter may be exposed to and affected by hearing and then translating, a description of very traumatic or confronting evidence. In addition, the Court and others present in the courtroom must be conscious that the interpreter is not the witness. It can be easy to overlook that the personality, cultural conditioning and evidence or arguments of the person for whom the interpretation is given are not those of the interpreter through whom he or she is communicating. The interpreter’s use of language, personality and cultural background is interposed in this form of communication.

28.  The interpreter swears or affirms that he or she will faithfully interpret the particular language into the English language and the English into the other’s language to the best of the interpreter’s skill or ability. Not all interpreters have any particular level of education. An interpreter who has no understanding of the principles of physics may not be an appropriate choice to interpret for a professor of physics in a case involving the professor’s expertise.

29.  Those of us who speak more than one language readily appreciate that translation is not some mechanical or objectively achievable function. Our own experience with the English language can be expressed in one of Oscar Wilde’s aphorisms:

“We really have everything in common with America nowadays, except, of course, language.” ^[6]

30.  A good translation requires the translator to be aware of the idiom of both languages and the nuances which each language attributes to particular words. And even the best of translations, particularly from the richness of the singularly extensive word base of English, will not provide a perfect substitute for the original.

31.  Just ask yourself, if you are multilingual, how you would translate into another language an English speaking South African’s statement, “I stopped at the robot.” The South African word for a traffic light is a robot, a fact that is a little bewildering when one first encounters it.

32.  Some of the instances where the quality of an interpreter has actually affected the result can be seen in cases that come before the Court in applications under the Migration Act 1958 (Cth) for review of administrative decisions concerning the grant or, usually, refusal of visas. In one appeal that came before me the interpreter in the Refugee Review Tribunal had interpreted a question about the Bible into the Mandarin question: “What is your favourite book story?” Needless to say, the witness was confused, and the confusion continued because the interpreter knew no words for any biblical personalities or cultural allusions and simply translated names such as “Moses” as “the person” or “him” or “her”. Hence, the witness became more and more frustrated, saying that he did not know what the Tribunal member was talking about in answer to the member’s translated questions about unnamed persons.

33.  And, it is easy to see why the Tribunal member understood that what was coming back from the interpreter in that exchange indicated that the witness, as opposed to the interpreter, knew nothing about Christianity. The reality was, as revealed in an accurate translation tendered in the appeal, that in earlier answers the witness demonstrated a very firm grasp of that religion’s principles. In the event, when the interpretation difficulties became apparent in the appeal, the Minister consented to the decision being set aside so that a proper hearing on the merits could take place.

34.  The point is that the quality of the interpretation in that example meant that the claimant had not had a hearing of his case at all, because of the breakdown in communication through the interpreter’s failures. However, because the Tribunal was only aware of the wrongly translated English answers, the member did not know that the claimant was not being asked questions accurately in translation. To the English speakers, everything looked right and it needed insight into both languages, as occurred on the appeal, to see that things had gone wrong.

The three Federal trial Courts’ multicultural plans

35.  The Federal Court of Australia has a multicultural plan that is due for review this year. The Family Court of Australia and the Federal Circuit Court of Australia have a joint multicultural plan. All those plans are directed to the administrative arm of the three Courts, with a view to improving court officials’ understanding of the nature of cultural differences both in general and with respect to some particular cultures, including indigenous ones.

36.  The plans seek to ensure that an interpreter will be provided at public expense where a litigant in person does not have access to one, if he or she is indigent, has difficulty in communicating because he or she does not speak or understand the English language, is deaf, hearing impaired and/or speech impaired^[7]. Court guidelines for the use of court funded interpreter and translation services usually will provide, as is the case with the three Federal Courts, that the Court will meet the cost of such services for persons appearing. This will occur where it appears that, if those services were not provided, the person or persons would be disadvantaged in their dealings with the Court.

Conclusion

37.  We must be cognisant of real or potential problems and difficulties, such as those exposed by Philip Yang, that the courts have in coping with unfamiliar cultures, interpreters and other languages. A court should try to be conscious of the way in which disadvantage can be suffered, both by a person from another background in court proceedings, as well as by the court, through perceived and unperceived difficulties arising from differing cultural  perspectives and languages.

38.  However, it is not always possible or feasible for a court to be aware of, or to take into account, all of the potential impacts that a person’s cultural background or first language may have, in resolving a dispute or litigation. Hopefully, courts can be, or be made, aware of issues that such situations present in a way that enables them to achieve the promise in the judicial oath.