M2 - Learner Manual

The Legal Services Commission of South Australia has published guidelines on working with Aboriginal Defendants. Extracts appear below:

Using Interpreter Services

Aboriginal people in the remote north-west of South Australia may speak in the Western Desert language which has many dialects. Port Augusta has a settled population of Aboriginal people, and is also a traditional meeting place and crossroads for Aboriginal people who travel to and through this area from the north-west of the state and beyond. This means that people from many different Western Desert language groups are in this area at any one time.

For those people from the Anangu Pitjantjatjara Yankunytjatjara Lands (APY Lands), their first language may be Pitjantjatjara or Yankunytjatjara and their second language may be English. It is important to remember that Pitjantjatjara and Yankunytjatjara people identify as separate and distinct groups despite intermarriage between the two groups. Pitjantjatjara can be understood by Yankunytjatjara, Ngaanyatjarra, and Manjiljarra speakers. Interpreter services are available for Pitjantjatjara and Yankunytjatjara. For further information on interpreting services, including other Aboriginal languages, please visit the Aboriginal Language Interpreting Service (ALIS) website.

Many people speak Aboriginal English which is a recognised separate dialect of English. Not only may this be difficult to understand, it also incorporates indigenous words, and some English words have different meanings. As there is no interpreter service available to assist with Aboriginal English, the duty solicitor needs to be attentive when taking instructions in Aboriginal English to avoid making false assumptions and misinterpreting the defendant’s instructions.

As discussed in the Role of the Duty Solicitor chapter, many legal terms and concepts are not only culturally foreign, they may be uninterpretable. A very able court interpreter has given evidence on many occasions in South Australian courts that the words of the police caution are untranslatable into Pitjantjatjara, containing as they do propositions put in the alternative, and abstract concepts such as “rights”, which are divorced from immediate experience [see Role of Duty Solictor chapter]. It is therefore important for the duty solicitor to avoid using legal jargon, and instead to describe the situation the defendant is in and their rights in general terms and plain English. An interpreter should also be able to assist with this dilemma.

Gratuitous Concurrence

Gratuitous concurrence is when 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. For example, it may indicate respect towards a person, cooperation between people, or acceptance of a particular situation.

However, it is widely recognised that people who are in a position of powerlessness when confronted by alien institutions and authority figures, and who are disadvantaged due to a language barrier, may adopt a strategy of always agreeing or saying what they think the person in authority wants them to say, regardless of the truth of the matter. Gratuitous concurrence is not confined to traditional Aboriginal people from the north-west of the State [see Role of the Duty Solicitor chapter].

Different ways of communicating

Often taking an indirect approach to seeking information is more appropriate when taking instructions from an Aboriginal defendant. This may avoid gratuitous concurrence, as discussed above, as it removes the necessity to respond to direct questions, or respond to questions with expected “yes” or “no” answers. Allowing a person to tell in their own words what has happened is culturally appropriate when taking instructions from an Aboriginal defendant and allows moments of silence and pause while thoughts are put together. Silence and pause are an important and normal part of communication and the exchange of information. A duty solicitor has to possess the virtues of patience and sympathetic understanding and must listen attentively to an Aboriginal person's story. The story and the telling of the story are essential aspects of Aboriginal culture. Stories are only revealed to people who can be entrusted with them [see Role of the Duty Solicitor chapter].

The use of body language is an integral part of communication for many Aboriginal people. For example, hand gestures and movement of the head and eyes can be important. Direct eye contact may be taken as a sign of aggression, rudeness or disrespect; lowered eyes and talking in a quiet manner may be seen as respectful behaviour.

Issues for Duty Solicitors

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) and the final report handed down in 1991 demonstrated very clearly that disproportionate numbers of Aboriginal people compared to the mainstream community have contact with the criminal justice system. It is widely recognised that this contact has a destructive influence on Aboriginal communities, families and individuals. The over-representation of Aboriginal people in the criminal justice system continues to this day; arrest and imprisonment rates remain at disproportionate rates. Needless to say, a number of Aboriginal people have had a lot of experience of the criminal courts, Magistrates, police prosecutors and defence lawyers. Not surprisingly, they do not enjoy being defendants in criminal cases and in some cases hold cynical and negative views of defence lawyers. It is important for the duty solicitor to be culturally aware and behave in a culturally appropriate manner when assisting Aboriginal defendants.

Some responses to duty solicitors

Assuming that the language barrier has been overcome and the Aboriginal client is able to communicate effectively with the duty solicitor in English, then a variety of responses may be experienced. These responses are no different in kind from what may be experienced with non-Aboriginal defendants, but there will be differences in emphasis that reflect Aboriginal peoples’ cultures, society, world view and past experience. Both non-Aboriginal and Aboriginal duty solicitors may be experienced as alien because they are seen as part of the alien court system, and not “one of us”. Again, attentiveness, patience and courtesy to the defendant are of the utmost importance [see Role of the Duty Solicitor chapter].

Gender issues

Gender issues inevitably arise for duty solicitors dealing with Aboriginal people, particularly when dealing with traditional people [see Role of the Duty Solicitor chapter].

Charged up or seriously ill?

Aboriginal and Torres Strait Islander people have a disproportionate lower life expectancy and health status compared to non-Indigenous people. They die on average twenty years earlier than non-Indigenous Australians and infant mortality is three times higher than for non-Indigenous Australians. It is widely accepted that the ongoing disadvantage faced by Aboriginal people is due to a complex web of socioeconomic factors such as: poverty, overcrowding in houses, inadequate access to clean water and sanitation, inadequate access to education, housing and employment, lack of access to medical assistance and treatment, poor nutrition, drug and alcohol abuse (including petrol and solvent sniffing), ongoing discrimination and racism, dispossession from land, the separation of families, loss of culture, and emotional upheaval. Chronic diseases such as heart disease, diabetes, stroke, and renal failure are common and escalating, as is drug and alcohol addiction. Taking into account the prevalence of chronic illnesses within Aboriginal communities, it is important that the duty solicitor is aware that not all people who appear unwell or charged up are in fact high on drugs or alcohol, but rather are chronically ill.

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) showed that Aboriginal people were disproportionately represented in relation to the offences of assault, drunkenness and public order offences. The deaths investigated by RCIADIC showed time and again that alcohol withdrawal in particular is life threatening, and that alcohol intoxication is potentially dangerous because it has the effect of masking effects and symptoms of other life threatening illnesses and conditions, such as closed head injuries [see Role of the Duty Solicitor chapter]. Taking these factors into consideration, it is important for the duty solicitor to not make assumptions about the condition of any defendant and be vigilant to the possibility that instructions may be needed in order to have the defendant medically examined.

Clearly, some defendants will be under the influence of alcohol or drugs. Where it is impossible to take instructions, the duty solicitor is obliged to obtain instructions to have the matter held over until the defendant is able to communicate effectively. Instructions should be obtained to warn the cell guards of the defendant's condition, and to remind them of their obligation and duty of care towards that person [see Role of the Duty Solicitor chapter].

The names of deceased people

For many Aboriginal people, raising the name of a dead person will cause serious offence and is culturally insensitive. For those people who speak Pitjantjatjara, the deceased person’s name is not to be spoken until the grieving family decides the name can come back into use. It is a matter of respect for traditional culture that one does not disturb its members’ memories of the dead by reviving the use of their name. In place of the person’s name, the word “Kunmanara” is used. Kunmanara means “one whose name cannot be mentioned” or “no name”. It is used by all people who have the same name as a person who has died recently, and may also be applied to the duty solicitor if it is appropriate. The rule is simple: if the defendant calls the duty solicitor “Kunmanara” or if the defendant calls somebody else “Kunmanara”, then it is very important the duty solicitor does not use that person's name, but rather call the person in question “Kunmanara”.

In addition, the duty solicitor should be aware that it is culturally inappropriate to show community members material such as video, voice recordings and photographs which contain images of the deceased person.

Ceremonial obligations

The Magistrates Court of South Australia, when it sits in the north-west of the State, will consider ceremonial obligations as reasons for absence from court, however more weight is given to such submissions where supporting information is also provided. This particularly applies to people of the Western Desert Language Groups, who reside at Yalata, Oak Valley and in the Pitjantjatjara Homelands. It is helpful to remember:

• It is never appropriate to ask of a defendant the nature of the ceremonies, because they relate to secret and sacred business;
• It is usually appropriate to adopt a euphemistic form of expression such as “going on business”;
• Ceremonial obligations apply to young, middle-aged and old men as well as women. Both men and women occasionally travel on business, especially when relatives are involved;
• Family relationships and obligations have a wide context; the obligation to attend funerals for more distant relatives is just as important as for direct family members. Community members are generally approachable in providing confirmation of when and where a funeral will be held.

Business usually takes place during the summer months, though this is by no means an invariable rule and there is usually a fairly long lead-up time prior to the occasion when the travelling starts.

It is obviously important to the maintenance of the tradition of the courts giving leeway to defendants at ceremony time that the present arrangements not be abused. Some communities have gone so far as to arrange for traditional leaders to speak with visiting Magistrates and to request them to impose bail conditions consistent with attendance on business, but requiring the immediate arrest of defendants who have absented themselves from the community during “business time” so as to go on a drinking binge. This is cited as an example of the seriousness with which community leaders regard the importance of Aboriginal people attending traditional ceremonies and not abusing the leeway that Magistrates give in those circumstances.

Sourced on 4/8/22: https://lsc.sa.gov.au/dsh/print/ch03.php

The Law Society Northern Territory has published Indigenous Protocols for Lawyers. Extracts are provided below:

Many lawyers in the Northern Territory act for and provide advice to Aboriginal people. For many lawyers, especially those who do not identify themselves as Aboriginal or Torres Strait Islander, those who do not have Indigenous heritage and those who are new to the Territory, communicating with Indigenous clients poses some special challenges. For example, because of the significant differences in language and culture, there is a much higher than usual risk of miscommunication.  This is problematic and can often result in serious consequences. Consultations with Indigenous organisations and the legal profession in the Territory suggested a need for protocols to assist communication between lawyers and their Aboriginal clients. Based on the obligations of lawyers under Australian law and influenced by international law, such protocols can set a basic standard of conduct to assist legal practitioners and their Indigenous clients.

The ongoing need for these protocols is plainly evident when it is considered that more than 30 % of the Northern Territory’s population is comprised of Aboriginal people.

Further, in December 2012 of the 1,452 people in custody in the Northern Territory only 239 were non-Indigenous. Currently, Aboriginal people comprise close to 86% of the jail population in the Territory. Of the 64,000 Aboriginal people in the Northern Territory, 1,279 were in prison as at 30 June 2014.1 The Productivity Commission’s Overcoming Indigenous Disadvantage report released in 2014 identified that the rate of Aboriginal and Torres Strait Islander imprisonment increased by 57 % Australia wide between 2000 and 2013.2 Indigenous incarceration rates are even worse for young people. On 31 January 2013, there were 65 juvenile detainees held across three detention centres in the Northern Territory. Of the 65 detainees, 96% identified as Aboriginal or Torres Strait Islander.3 The Australian Institute of Health and Welfare’s report “Youth Detention Population In Australia 2014” looks at the numbers and rates of young people who were in youth detention due to their involvement or alleged involvement in criminal activity. It focused on trends over the four-year period from June 2010 to June 2014. The report found that over that period, the over-representation of Indigenous young people in detention rose from 22 times to  25 times the rate of non-Indigenous young people.4 The legal profession has a critical role to play in being part of the solution to the serious problem of over-representation of Indigenous people in custody in the Northern Territory. Further, the issue of improving communication between Indigenous clients and their lawyers extends to all aspects of providing proper advice and representation to Indigenous people in the justice system. This means the protocols apply with equal importance and effect in the civil jurisdiction of the courts as well as the criminal jurisdiction and with that, the legal profession can more readily facilitate the delivery of justice to Indigenous people. As a basic tool, these protocols will do much to assist in the ultimate end of increasing criminal and civil justice for Indigenous people and as a starting point the role of interpreters is critical. The importance of Aboriginal interpreting services has been well documented in several national reports, including:

• the Royal Commission into Aboriginal deaths in custody (1991) (recommendation 100)
• the Recognition, rights and reform social justice report (2000)
• the Bringing them home report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997).

The six protocols

Protocol 1 Assess whether an interpreter is needed  before proceeding to take instructions.

Protocol 2 Engage the services of a registered, accredited interpreter through the   Aboriginal Interpreter Service.

Protocol 3 Explain your role to the client.

Protocol 4 Explain the relevant legal or court process to the client prior to taking instructions.

Protocol 5 Use ‘plain English’ to the greatest extent possible.

Protocol 6 Assess whether your client has a hearing or other impairment that may affect their   ability to understand.

Sourced on 4/8/22: https://www.lawsociety.com.au/sites/default/files/2018-03/indigenous_protocols_for_lawyers_0.pdf