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The problem of imposing Western legal practices on ATSI people, & the case for practical reforms By Alexandra Kenny
The problem of imposing Western legal practices on ATSI people, and the case for practical justice reforms
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Alexandra Kenny is a final year Law Student at Adelaide Law School who will soon begin her legal career as a graduate at WRP Legal and Advisory. As part of the final year law subject Evidence and Advocacy, she examined the impact that Anglo Australian procedural and evidentiary law and practice can have on Aboriginal people, and considers options for reform.
The South Australian (SA) legal system is founded on Western ideals and practices. This, coupled with systemic societal issues facing Aboriginals and Torres Strait Islander (ATSI) communities, like poverty and lack of education, has resulted in ATSI people being hindered in their access to the system. ATSI people can be vulnerable when arrested or questioned by police for reasons of language, culture, and communication style. This vulnerability is then repeated in the court process particularly when ATSI people appear as defendants and witnesses. This paper looks at current processes and proposes areas for reform.
CONTRASTING CULTURES
The ATSI legal system differs substantially to the Western legal system. Overall, ATSI peoples’ legal system is more flexible, community driven and proceedings recognise both history and emotion.1 There are deeply ingrained social and cultural communication preferences, which are not readily understood in a typical Anglo Australian legal system, with recognition of cultural needs only rarely resulting in variations to taking evidence, or other court process. 2 An example of this contrast is that certain knowledge can only be known by particular genders, and thus if asked questions in the presence of the opposite sex, ATSI peoples refuse to answer the question at hand. SA INITIATIVES TO PROTECT ATSI PEOPLE: QUESTIONING AND ARREST
Historically, ATSI people have experience significant disadvantage during arrest and questioning by police because of language, communication issues and contrasting cultures. This creates a procedural fairness issue. These issues were first addressed in Australia in the Northern Territory, which introduced the Anunga Guidelines which require, for example, an interpreter to be present, care in administering the caution to ensure proper understanding, and the presence of a “prisoner’s friend” whom an ATSI person has confidence in.
In 1976, SA adopted the Anunga guidelines, requiring that ATSI peoples be advised by police that, wherever possible, they can access a prisoner’s friend for interviewing assistance, as well as an interpreter.3 These guidelines are supplemented by the Police Commissioners General Orders,4 which require police “to advise Aboriginal Legal Aid if an ATSI has been arrested or taken into custody’.5 It is also required that police tape ATSI suspects being told about their Anunga rights, and being advised of the right to let someone know where they are.6
SA has also adopted an adaption of the Northern Territory protocols (the protocol).7 The protocol requires engaging an interpreter if needed, explaining the lawyers’ role to the client, explaining the legal processes prior to taking any legal instructions, using plain English where possible, and assessing whether any other disability or impairment is evident which impacts the client’s ability to understand. Of course, these initiatives are dependent upon there being sufficient resources available, which is not always possible in remote regions.
COURT PRACTICE
There are a number of areas in which cultural differences are sharply evident including the use of direct questioning, the cross-examination process and rules of evidence.
Direct Questioning
There are two assumptions in the Anglo-Australian fact-finding process: that asking questions is most effective for information finding, and asking many questions is the most effective for discovering lots of information. In contrast, ATSI people have different assumptions: namely that indirect methods are more effective to find out personal information, and asking many questions is ineffective. Additionally, ATSI people may be confused by questions asking for choice between two alternatives, which is a common line of questioning in Anglo Australian advocacy, but not common in many ATSI cultures.
Cross Examination
Cross examination is central to the Anglo-Australian system to test the truthfulness of a witnesses. The process is based on two assumptions: firstly, that an effective way to test truthfulness is to put conflicting propositions forward as conflicting answers indicate dishonesty. Secondly, inconsistency, when interviewed about a story previously recounted suggests unreliability. 8
ATSI people, already averse to direct questioning favoured in Anglo Australian
practice, may often respond to multiple questions asked in pressured situations, by saying “yes” to keep the other party happy. This is known as gratuitous compliance, which ATSI people adopt to protect themselves within interactions with non-ATSI Australians.9 In the controversial Pinkenba case, in which three Aboriginal boys gave evidence in a committal hearing of six police officers charged with deprivation of their liberty, this was highlighted with the boys continuously contradicting themselves during cross examination. This case vividly highlights that the practice of asking a series of ‘yes’ or ‘no’ questions in an intimidating situation is merely ‘inviting contradictory answers’.10
An additional communication barrier highlighted during cross examination is the use of silence by ATSI people, which is commonplace and reflects a “desire for time to think… and… to get comfortable in a courtroom situation”.11 In the Anglo-Australian system, silence can be interpreted as evasiveness. For example, in Pinkeba, counsel commented ‘We have to take your silence as ‘no’, don’t we?’.12 Further, direct eye contact is sometimes avoided by ATSI people as it is considered rude, but this can be interpreted by juries as dishonesty. Again, in Pinkenba, counsel suggested that the boy’s refusal to look at him was because “he was thinking that ‘we’ll see lies written all over… [his] face’’.13
Hearsay and Opinion Rules
In land claims, proving traditional laws and customs is particularly difficult as there are no written records of historical matters. ATSI knowledge of law history and practice is kept orally. Here the Anglo-Australian legal system, the ‘most prohibitively literate of institutions’,14 acts as a barrier. This means that oral evidence of these matters is treated as hearsay, contravening Anglo Australian privileging of first-hand evidence based on personal knowledge. Alternately, people who possess this knowledge (and often more than one person will possess different aspects of knowledge) may not be considered “experts” by Anglo Australian standards, so their knowledge is treated as inadmissible opinion. This is one of the biggest clashes between ATSI people and the Anglo-Australian system, as cultural and other information is transmitted orally in most Aboriginal communities.
REFORM
The following reforms are suggested for application not only in SA, but Australia-wide.
Allowance of Narrative Answering
Police and counsel should allow ATSI people to give their explanation of what happened in narrative form with minimal interruptions. Whilst this may raise irrelevant, inadmissible or prejudicial information, the advantages of allowing ATSI people to give evidence in a culturally appropriate way is advantageous for justice.15 Notably this is allowed by s 29(2) Evidence Act 1995 (Cth) with leave of the court. The Evidence Act 1929 (SA) should be similarly amended.
Discretion for Leading Questions and Adjustment of Questioning
The use of leading questions in cross examination is often viewed as a right. However, the judge has a discretion to disallow this practice. In addition to the issue of gratuitous compliance, ATSI people may fall victim to ‘scaffolding’, where witnesses adopt words posed by the questioner. It has been further suggested that rather than proposing questions in the alternative which may confuse ATSI witnesses, counsel should plainly ask, for example, “tell me where you were then” in order to avoid this confusion. This is where further education both for counsel, but the judiciary as a whole, would be beneficial. Handbooks such as that by Dr Diana Eades16 should be adopted in each state in order to educate legal practitioners and police about communication differences and ways to adapt questioning when dealing with Aboriginals in our system.
Hearsay and Opinion
It is recommended that Evidence Acts be reformed to avoid objections to this evidence based on the ‘ultimate issue’ rule, ‘common knowledge’ rule and the ‘hearsay’ rule with exceptions.17 For example, Aboriginal customary law, which is passed down verbally through generations, is often inadmissible as hearsay or opinion evidence. Allowance of this questioning style ultimately helps aid in the proper gathering of evidence, and the ability of counsel to do this should not be hindered by rules of evidence which do not recognise different cultural practices.
Although devised as a sentencing court, not a trial court, the experience of the Indigenous Urban Court which was opened in Port Adelaide in 1999 provides evidence of the value of culturally relevant practices. This and similar courts which create more culturally appropriate court processes, including more informal and open exchanges of information and the presence of Indigenous Court workers, result in ‘improved communication [and] reliance upon Indigenous knowledge’ in the sentencing process.18 This has generally improved court appearance rates in other jurisdictions.19
CONCLUSION
The current protocols in SA address some issues for ATSI people in the legal system, particularly the language and communication diversity. However, there are still inherent issues with interviewing, cross examination and rules of evidence, which hinder ATSI people from accessing justice to the fullest extent. Education
around ATSI communication and alternative methodologies for witness examination are needed in SA, and Australia in general, as a legal system which caters to all needs benefits us all in the furtherance of justice. B
Endnotes 1 Australian Law Reform Commission, Recognition of Aboriginal Customary Laws (Report 31, 1986) 7. 2 For example: Ibid citing A Ligertwood, ‘The
Trial of Sydney Williams’ (1976) 2(4) Legal
Services Bulletin 136. 3 Dean Mildren, “Aboriginals in the Criminal
Justice System” [2008] Adelaide Law Review 1; (2008) 29(1) Adelaide Law Review 7, 10 citing R v Anunga & Ors (1976) 11 ALR 412. 4 Police Circular No 354 (1975). 5 Dean Mildren, “Aboriginals in the Criminal
Justice System” [2008] Adelaide Law Review 1; (2008) 29(1) Adelaide Law Review 7, 10. 6 Police Administration Act 1978 (NT) ss 140, 141. 7 Law Society of South Australia, Lawyer’s Protocols for Dealing with Aboriginal clients in South Australia (at 2nd March 2020). 8 Diana Eades, Taking evidence from Aboriginal
Witnesses Speaking English: Some Sociolinguistic
Considerations (2015) Precedent Issue 126 44, 46. 9 Justice Dean Mildren, Redressing the Imbalance
Against Aboriginals in the Criminal Justice System, (1997) 21 Criminal Law Journal 7, 14 citing R v
Anunga (1976) 11 ALR 412. 10 Diana Eades, Cross Examination of Aboriginal
Children: The Pinkenba Case (2007) 6(25) Indigenous law Bulletin 11, 12. 11 Diana Eades, Aboriginal Ways of Using English, (Aboriginal Studies Press, 2003) 101. 12 Diana Eades, Cross Examination of Aboriginal
Children: The Pinkenba Case (2007) 6(25) Indigenous law Bulletin 11, 12. 13 Diana Eades, Cross Examination of Aboriginal
Children: The Pinkenba Case (2007) 6(25) Indigenous law Bulletin 11, 12. 14 Peter Gray, ‘Do the Walls Have Ears?:
Indigenous Title and Courts in Australia’ (2000) 5(1) Australian Indigenous Law Reporter 1. 15 Justice Dean Mildren, Redressing the Imbalance
Against Aboriginals in the Criminal Justice System, (1997) 21 Criminal Law Journal 7, 12. 16 See Diana Eades, Aboriginal English and the
Law:Communicating with Aboriginal English
Speaking Clients : a Handbook for Legal Practitioners (Continuing Legal Education Department of the
Queensland Law Society, 1992). 17 Australian Law Reform Commission, Uniform
Evidence Law, (Report No 102, 2010) 19. 18 Law Society of South Australia, Lawyer’s Protocols for Dealing with Aboriginal clients in South Australia (at 2nd March 2020). 19 Ibid.
Post-COVID Forum heralds a new chapter in conference delivery
The Society’s premier CPD event, the Forum, was held for the first time as a hybrid event, and the positive feedback suggests that the format will continue long after the COVID-19 pandemic recedes from memory.
The Forum still hosted in-person events at Adelaide Convention Centre, but also offered all sessions as live webinars. And in a first for the Forum, a webinar only plenary session opened proceedings, with famed environmental activist Erin Brockovich being beamed in from the US.
Ms Brockovich delivered an impassioned inspiring speech about fighting for what’s right, and, at 60 years of age, detailed her continual advocacy for victims of water contamination and other environmental and consumer issues.
She explained how she was transformed by her mum urging her to have “Stickto-itiveness”, a dogged persistence to see something through to the very end, despite the obstacles. She also declared the “4 Ls” that act as guiding principles in her activism – Logic, leverage, loyalty, and love.
The face-to-face sessions all took place in the manner they always have, but with some minor adjustments to comply with distancing guidelines Nevertheless, it still offered an opportunity for attendees to network, speak to presenters, and enjoy good food and coffee. B
Erin Brockovich delivers the plenary session from her home
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