By Lola Archibald
When asked that undeniably necessary, but still dreaded question: what do you study? I’m always grateful that my seventeen year-old self had the foresight to pair Law with something a little less infamous, and maybe more conducive to polite small-talk: Languages. Hastily, I will mention that I study Law, before emphasising that I also study Languages, and that most of my week is spent trying to memorise Arabic verb conjugations (and definitely not traipsing through Leighton McDonald’s Principles of Administrative Law).
Last year, I finished Advanced 2 Italian, and with it my formal Italian-language studies. Naturally, I now find myself reflecting on my true Italian proficiency, and the reality that you are never really finished learning a second language. Si, after all these years of study, I could talk to you about a range of academic topics: la Mafia, the myth of il bel paese, and the nord-sud divide, but still I find that, when faced with purely professional and technical language, I have no choice but to drag out Google Translate.
My own shortcomings in Italian have led me to consider the difficulties faced by speakers of English as a second language (‘ESL speakers’) when engaging with the Law in Australia, especially considering the notoriously inscrutable nature of legal texts. Linguistic analysis of legal language has attributed its inaccessibility to a tendency of lawyers to use both ‘centre-embedding,’ - the insertion of clauses into the middle of sentences (kind of like I’m doing right now!) - and infrequently used words.[1] These characteristics distinguish legal texts from other types of writing or speech, rendering them particularly difficult to understand.
Unsurprisingly, the challenge of understanding legal texts is compounded for ESL speakers. A study conducted by a group of linguists, psychologists, and lawyers coined the ‘Communication of Rights Group’ considered the extent to which ESL speakers are able to understand the rights delivered to them in criminal trials. In their report, the group emphasised that adults who have learnt a second language process information differently in that language in comparison to their first, and that this difference can exacerbate communication difficulties. Crucially, they determined that ‘even speakers who can maintain a conversation in English may not have sufficient proficiency to understand complex sentences used to communicate… legal terms.’[2] This finding reiterates the unique challenge that legal language, as distinct from more colloquial or everyday language, poses for ESL speakers.
Given the linguistic and cultural diversity of the Australian population, the inaccessibility of legal English should be a central concern of the Australian legal system. According to the 2021 census, six million Australians, or 23% of the population, speak a language other than English at home. In the same year, 3.4% of the population responded that they spoke English ‘not well’ or ‘not at all.’[3] These statistics demonstrate that, without access to proper and effective translation and interpreting services, a significant proportion of the Australian population would be restricted from fully accessing and engaging with the Law at all levels.
Appropriately, the necessity of legal translation services has been acknowledged in Law both domestically and internationally. In international law, the International Covenant on Civil and Political Rights states that everyone is entitled to ‘the free assistance of an interpreter if he cannot understand or speak the language used in court.’[4] Meanwhile, the Australian High Court held in Ebatarinja v Devland that, where the defendant does not speak the language in which the proceedings are being conducted, ‘the absence of an interpreter will result in an unfair trial.’[5] This common law finding is accompanied by a collection of statutory provisions in a similar vein.[6] For example, the Community Relations and Principles of Multiculturalism Act 2000 (NSW) states: ‘All individuals and institutions should respect and make provision for the culture, language and religion of others within an Australian legal and institutional framework where English is the common language.’[7]
While these legislative and common law acknowledgements are positive developments, there is significant practical evidence to suggest that the difficulties faced by ESL speakers remain largely overlooked in Australia. In their assessment of the effectiveness of interpretation services in the NSW criminal justice system, Ian Dobinson and Thomas Chiu allude to this, noting: ‘there has been no research in NSW which has sought to analyse the use of interpreters in any aspect of the justice system.’[8] Ultimately, Dobinson and Chiu’s study concludes that ‘the [justice system’s] goal of access and equity [for ESL speakers]... has not been met,’ citing anecdotal evidence of an insufficient number of interpreters available to meet the need, as well as the generally low standards of qualification and training of the interpreters who are available.[9] They identify the main reason for these shortfalls as being that ‘the Australian justice system itself has underestimated the importance of language interpretation.’[10] This conclusion is incredibly deflating; how can an entire demographic be so significantly hindered in accessing the Law, primarily because the system does not wholly recognise the glaring barrier of language?
As long as Law is encoded in language, the form of that language will create a barrier to access. This barrier is most visible for ESL speakers, but no doubt presents itself at a range of levels and degrees, depending on an individual’s proficiency in English and ability to decode infamous ‘legalese,’ which even lawyers struggle to understand.[11] To that end, it should be a primary goal of our legal culture to ensure that every person seeking legal services can fully understand and communicate within these systems, especially given the linguistic and cultural diversity of the Australian population. There are a range of policies which could be implemented in Australia to make improvements; for example, the Communication of Rights Group suggests ensuring access to interpreters, developing standardised statements in other languages, and communicating in an active voice using frequently-used words and shorter sentences, among other things. Simultaneously, however, a crucial preliminary step to improving access to justice for ESL speakers in Australia could be simply recognising both the existence, and the gravity of this issue.
So, will I ever be able to leisurely skim a piece of Italian legislation? A part of me really does hope so, though I have a considerable amount of vocabulary to learn before I get there. In the meantime, I think it’s important to reflect, next time we’re trying to discern the meaning of ‘jurisdictional error’ and ‘certiorari’, on what a privilege it is to be learning all this language, and consider the ways we may be able to dismantle the legal language-barrier in the future.
Endnotes
[1.] Eric Martinez, Francis Mollica, and Edward Gibson ‘Poor writing, not specialized concepts, drives processing difficulty in legal language’ [2022] (July) International Journal of Cognitive Science 1.
[2.] Communication of Rights Group, ‘Guidelines for communicating rights to non-native speakers of English in Australia, England and Wales, and the USA’ (2016) American Association of Applied Linguistics <https://www.aaal.org/guidelines-for-communication-rights##>.
[3.] Australian Bureau of Statistics, ‘2021 Census highlights increasing cultural diversity’ (Media Release, 20 September 2022).
[4.] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14.
[5.] Ebatarinja v Devland (1998) 194 CLR 444, [26]-[27].
[6.] Ian Dobinson and Thomas Chiu, ‘Access and Equity: The New South Wales Court Interpreter Service’ (2005) 17(1) Current Issues in Criminal Justice 30.
[7.] Community Relations and Principles of Multiculturalism Act 2000 (NSW) s 3.
[8.] Dobinson and Chiu (n 6), 43.
[9.] Ibid 44.
[10.] Ibid 44.
[11.] Eric Martinez, Francis Mollica, and Edward Gibson, ‘Even lawyers do not like legalese,’ (2023) 120(23) Proceedings of the National Academy of Science of the United States of America 1.
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