Migrants and Refugees Denied Justice

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Refugees coming off boat

Australia is a culturally and linguistically diverse country, but a new report reveals migrant and refugee communities do not have the same access to justice as their mainstream counterparts.

Migrants and refugees ignored

The Judicial Council on Cultural Diversity (the Judicial Council) is an initiative of Chief Justice French, which is endorsed by the Council of Chief Justices of Australia.

According to its new report released last week, there are many “significant and innovative” access to justice initiatives being implemented for Aboriginal and Torres Strait Islander communities that are not offered to migrant and refugee communities.

The report was based on a study of existing policies, protocols and procedures across Australian jurisdictions and suggests that Australian courts have learned valuable lessons through the formulation of projects seeking to address the continuing difficulties Indigenous people can face when enforcing and protecting their rights through the legal system.

The Judicial Council believes these lessons should inform targeted resources that meet the needs of migrants and refugees.

Cultural background should not diminish access to justice

More than one in four Australians were born overseas. We speak over 300 languages, including many rich and diverse Indigenous languages, and follow 120 different major religious denominations.

This cultural diversity has benefited Australia enormously in terms of wealth creation, social transformation and human development. But it has also highlighted systemic problems for governments creating a level playing field, inside and outside the courts.

For justice to be accessible, equitable and fair, courts must be able to understand and respond to the needs of our culturally diverse society, and citizens must be able to understand and respond to our complex legal system.

The principles of access to justice and equality before the law are internationally acknowledged basic rights which should not be diminished because of a person’s cultural background.

The International Convention on Civil and Political Rights states that:

“All persons shall be equal before the courts and tribunals … In the determination of any criminal charge against him or of his right and obligations in a suit at law, everyone shall be entitled to a fir and public hearing of a competent, independent and impartial tribunal established by law.”

It also provides that:

“All persons are equal before the law and art entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social original property, birth or other status.”

Report outlines ‘major gaps’ for Indigenous and culturally diverse communities

The Judicial Council’s report points to four areas where inequities cause major concern across all Australian jurisdictions:

  • Lack of coordination across the judiciary in addressing areas of concern arising from cultural and linguistic diversity;
  • Absence of national competencies in relation to cultural diversity;
  • Lack of consistency in the requirements for engaging interpreters, as well as their under-utilisation and concerns about interpreter quality; and
  • Insufficient resources or formal structures dedicated to supporting judicial officers and administrative staff to design or implement cultural diversity policies.

Disturbingly, the government has been aware of these issues for a long time and continues to grapple with the same concerns. The National Agenda for a Multicultural Society published in 1989 introduced the Access and Equity Policy which recognised that certain members of the community have greater difficulty dealing with the Australian legal system.

Language a key barrier

In the Australian criminal justice system, providing a court appointed interpreter has always been the main form of assistance given to defendants and witnesses who have difficulty with English.

However, a 1991 report from the Commonwealth Attorney-General’s Department, Access to Interpreters in the Australian Legal System, found substantial evidence that where a witness had limited understanding of English, many judges were hesitant about allowing an interpreter to be used.

Accordingly, laws and policies have been enacted to provide ‘a right to an interpreter’, although difficulties with the practical implementation of this ‘right’ have exposed ongoing deficiencies within the system.

Where a defendant is in custody has difficulty with English, the interpreter is often booked for them and ready to assist in court.

However, where a defendant is at liberty – and particularly when they are self-represented – it generally only becomes apparent that an interpreter is required once they have already appeared before a Magistrate.

This means Magistrates must carefully balance the right to an interpreter with the need to avoid delays, and they will sometimes deal with the matter without an interpreter present.

In Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75, a leading NSW case on the right to an interpreter, former High Court Justice Michael Kirby said:

“The mere fact that a person can sufficiently speak the English language to perform mundane social tasks or even business obligations at the person’s own pace does not necessarily mean that he or she is able to cope with the added stresses imposed by appearing as a witness in a court of law.

Still more powerful are the reasons for affording a person the assistance of an interpreter if he or she must present the case without legal counsel. Some of the earlier legal authorities about access to an interpreter reflect an attitude of a society racially and linguistically homogenous and often unsympathetic to the problems of others struggling in an alien environment.

It is typical of a country with poor skills in languages other than English that even educated judicial officers sometimes show an intolerance to the predicament of parties and witnesses whose first language is not English and who seek the provision of an interpreter.”

The Judicial Council’s report recommends an increase in awareness of the potential for inequality, which “requires knowledge on the part of those involved in the court process – judicial officers, lawyers and court staff”.

“Even among those with an awareness of the issues, there was a tendency to see these issues as ‘additional’ or ‘marginal’ to the broader issues associated with ‘access to justice’,” the report found.

It seems a culture shift is required to challenge these complacent attitudes, but as we have already seen, change can take a long time when it comes to assisting minority groups.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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