Alternative Law Journal
In 1885 Justice Cooper in Queensland discharged four Aboriginal prisoners on a charge of murder when no interpreter could be found to communicate the charge to them. Are Indigenous people in the criminal justice system any better off in Northern Australia in the year 2000?
In the Northern Territory hundreds of Indigenous people with limited English language skills are processed through the courts each month without interpreters. Fresh new, and not-so-new, lawyers who come to the Territory to work in the criminal justice system are shocked and appalled at the substandard levels of communication they are expected to accept when representing Indigenous clients. Sadly, this shock wears off within months as the reality of having to do the job overwhelms and gradually wears them down. So that what at first shocked and outraged them, becomes normal. Doctors diagnose, treat and operate on patients they cannot speak with, but that is another story.
Indigenous people make up 27.5% of the NT’s population, 77% of the prison population and over 50% of all hospital admissions. The reasons for the disproportionately high later figures are complex. Around 61% of these people speak an Indigenous language as their first language, and many have difficulty communicating anything but basic information in spoken English. This amounts to some 30,000 people who speak an Indigenous language at home in the NT.
Australian Bureau of Statistics figures indicate that 69.02% of Northern Territory homes use English as a first language, 16.28% use an Indigenous language and 8.81% use an ethnic language. Of the top 15 languages after English, spoken in the NT, 12 are Aboriginal languages.
The problem is that despite the above figures there has been no government provided interpreter service available in Indigenous languages in the Northern Territory until this year. This new but still limited service has been the culmination of a fight that has been running intensively for at least 20 years. It should be noted here that the Institute for Aboriginal Development (IAD) has operated an Aboriginal interpreter service in the Alice Springs area since 1983 without any assistance from the NT government. Similarly, the Katherine Language Centre has provided a service in the Katherine region since 1996, again without NT government assistance. The training of Interpreters also began at IAD and Bachelor College in 1980.
This situation contrasts starkly with the comparatively Rolls Royce government interpreter services that have been available to all other non-English speaking people. For a number of years there have been two interpreter services operating in the Territory. The NT Interpreter and Translator Service (NTTIS) funded and operated by the NT government, and the Telephone Interpreter Service (TIS) operated and funded by the Commonwealth. Between the two services they provide 24-hour access to free interpreter services in some 150 languages. You could get an Uzbeki interpreter but not a Pitjantjatjara interpreter.
In addition to the TIS, various Commonwealth government agencies have also launched some admirable initiatives aimed at providing information in various languages for the benefit of migrant populations. A quick perusal of information brochures and websites shows the Tax Office provides information in 18 languages, the Centrelink Multilingual Service allows people to speak with staff in 20 languages, Centrelink claim forms are available in 20 languages and the Administrative Appeals Tribunal has information pamphlets in 34 languages. Not one of the languages listed for any of these bodies is an Indigenous language.
I think it is impossible to articulate the level of inhumanity and injustice visited on Indigenous people from the lack of interpreter services. I can tell you that Aboriginal women have been sterilised without their consent, they did not understand the bit about it being permanent. One woman discovered the truth when she attended a clinic to find out why she could not have kids.
Aboriginal people are charged, arrested and gaoled with little or no understanding of what has happened to them or why. A common anecdote despairingly told amongst criminal lawyers defending Aboriginal clients goes like this: ‘I explained the charges against my client and the evidence to support them. Then I explained the business about pleading guilty or not guilty. I did not hurry my explanation and we went over the matters a few times. Then I told him to go away and think about what he wanted to do. He came back after a few hours and I asked him if he had decided how to plead. He said he had. He wanted to plead “guilty-not-guilty”.’
Indigenous defendants have their court matters adjourned for weeks and months for want of an interpreter. They are ineligible for bail because the bail conditions cannot be explained to them so they remain remanded in custody, remand conditions being widely acknowledged as more severe than those for sentenced prisoners. A young man I spoke to recently spent five months in remand 800 km from his home. His case was adjourned for want of an interpreter, among other things. Speaking with him through an interpreter after the events, I doubted any justice has been done. He had not wanted to tell his story to his lawyer, in what is to him a foreign language. In truth, he had little idea of what had happened to him, or what aspect of his behaviour had been punished. In another case, an Aboriginal defendant who was recently acquitted in the Supreme Court asked his lawyer afterwards if he had got bail.
A fact largely ignored by many of those screaming for harsher more arbitrary punishments for crime in the NT, is that so many of the victims of crime are Indigenous people. How do they get justice when they can’t tell their story in the language of the so-called ‘justice system’. The proponents of harsher sentencing laws say Aboriginal people should speak English. Indeed on 24 November 1999 the NT Chief Minister, Denis Burke, publicly stated that ‘providing Aborigines with interpreters was like giving a wheelchair to someone who should be walking’.
Indigenous people are unable to access fundamental services that everyone else in Australia takes for granted. The lack of access to legal and medical services has been identified as the most desperate, but the problem is far more widespread than that.
It would not be a radical or original idea to suggest that the gross over-representation of Indigenous people in the criminal justice and health systems in the NT, and the appalling morbidity figures, can in part be directly attributable to the lack of Indigenous language interpreter services.
The need for a properly funded and trained interpreter service in Indigenous languages has been clearly researched and reported on for many years. There have been at least 10 reports in the past 20 years. These reports have been both specific to the issue or have been part of a wider subject area such as the Royal Commission into Aboriginal Deaths in Custody. In every case, the facts have been overwhelming and the need indisputable.
The voices of protest have included Indigenous people, doctors, lawyers, welfare workers, judges, bureaucrats, teachers, linguists, churches and many more. These voices arguably got their first real public response in the 1980s in Central Australia. However, for the purposes of this article, I am only considering the relatively recent developments of the 1990s.
In 1994 the NT government made an election commitment to develop a ‘technical interpreter/translator service within all service delivery departments’. The NT Office of Aboriginal Development (OAD) drafted an action plan to address the issue of Indigenous language speakers dealing with government. This in turn resulted in the appointment of a co-ordinator to identify and register people willing to act as Indigenous language interpreters. In 1996 Bachelor College started an intensive training program resulting in 32 accredited interpreters. In 1996 OAD, the NT Attorney-General’s Department and the Commonwealth Attorney-General’s Department agreed to jointly fund the NT Aboriginal Languages Interpreter Service Trial. The trial took place from 6 January – 30 June 1997.
The cost of the six-month trial was $110,105. It was by any objective standard, a success. A Draft Evaluation Report was produced and widely circulated to the various stakeholders in July 1997. The Draft Report clearly stated the need for the service and the feasibility and cost effectiveness of it. This Draft Report was buried, and in its place the NT Attorney-General’s Department produced its own report in May 1998 which was a much watered down and radically different version to the earlier report. The Aboriginal Interpreter Service was dead but not buried.
The voices of protest again gained momentum and, in the context of wider dissent about issues such as the impact of the NT’s mandatory sentencing laws, were heard by a wider audience.
In February 1999 the NT Anti Discrimination Commissioner, Dawn Lawrie, undertook a public inquiry into the provision of interpreter services in Aboriginal languages. Her report was published on 29 June 1999. She concluded that the failure to provide an interpreter service in Aboriginal languages of the same standard as that provided to all other non-English speaking, non-Aboriginal people in Australia was ‘discriminatory, harsh, unjust and unreasonable’.
Rallies were organised and petitions tabled in parliament following this Report. On 26 October 1999 the NT government announced that it had approved the establishment of a ‘central register and booking service to cater for Aboriginal languages’. Alas, no action appeared to result from this statement.
The outrage against the NT’s mandatory sentencing laws forced a Senate Legal and Constitutional Committee (the Committee) to look into the laws. The overwhelming numbers of submissions made to the Committee against the mandatory sentencing laws also highlighted the need for an Aboriginal language interpreter service. The Committee ultimately recommended that the establishment of an Aboriginal interpreter service be a priority for the NT.
During the course of the Senate Inquiry the NT government rebutted the claims about the lack of an Aboriginal language interpreter service by stating that a ‘booking and referral service’ did in fact exist. This was untrue, as evidenced by the fact that three weeks later the NT government stated in the NT parliament that ‘a service was not in operation’.
Members of the Aboriginal Interpreter Working Group, a group including lawyers, medical practitioners, Aboriginal interpreters, linguists and many others were outraged. The Working Group lodged a complaint with the Senate Inquiry that the NT government’s statement was untrue and could easily be tested by seeking the address and telephone number of this service. The day after the Working Group lodged its complaint, the NT government provided the address and telephone number of the ‘Aboriginal Interpreter Booking Service’ — an overnight service!
At around the same time the United Nations Committee on the Convention on the Elimination of All Forms of Racial Discrimination (CERD) was considering Australia’s periodic report for the 1 July 1992 – 30 June 1998 period. Submissions were made to the CERD committee in relation to the failure to provide Indigenous interpreter services in the NT. The CERD Committee expressed ‘concern that the provision of appropriate interpretation services is not always fully guaranteed to Indigenous people in the criminal process’.
On 10 April 2000 the Prime Minister and the NT’s Chief Minister made a Joint Statement in which the Commonwealth expressed its desire to alleviate some of the harsher aspects of mandatory sentencing on juveniles, and to jointly fund an Aboriginal Interpreter Service. It committed $5 million a year for four years for this purpose.
At the time of writing, July 2000, the NT government has followed through on its promise to establish an Aboriginal Interpreter Booking Service (AIBS). It is located in the NT Office of Aboriginal Development. AIBS will book, locate and arrange an interpreter for anyone requiring one. The catch, and there always is one, is that the service is not free. It is fully user pays. The costs can be considerable because on top of the standard interpreter rate, the user also has to foot the bill for the interpreter’s transport and accommodation if required. Given that it is not always possible to find an interpreter where you need one, this can involve flying the interpreter from a remote community to another part of the NT.
The lack of community consultation by the NT government in its establishment of this service has meant that a number of more cost-efficient methods of addressing the issue of providing interpreters across vast areas have not been explored in much depth.
The NT government has purported to address the user pays aspect of the service by providing selected NT government agencies with additional funding to pay for interpreters. These agencies include Health, Corrections, Police, Department of Public Prosecutions and the Office of Courts Administration. Whether these funds will be used for the purpose to which they were allocated remains to be seen. Funding was not allocated to the NT Legal Aid Commission or various agencies such as Darwin Community Legal Service which have previously benefited from NT government funding.
The Commonwealth has agreed to fund 50% of the recurrent costs of the NT Aboriginal Interpreter Service including annual training costs for four years. It has also agreed to a one off allocation of up to $250,000 for the training of Aboriginal Interpreters. Commonwealth departments and funded agencies such as the Aboriginal Legal Services are still waiting on the Commonwealth to provide details of its funding allocations to them. While there is cautious optimism that the Commonwealth will provide the necessary funding, there is concern at the delay. The situation as it currently stands is that any agency involved in the arresting, prosecuting and gaoling of Aboriginal people in the NT has access to funds to pay for interpreters. None of the agencies who defend Aboriginal people have actually received any funding.
I am reluctant to criticise the new service available in the NT in its infancy because it is still vulnerable and in need of nurturing. The staff at the AIBS are committed to the project and performing well within the political and funding constraints under which they are forced to operate. However, I and others, are worried about the political and funding climate surrounding the project. I am concerned that the service seems to be a lesser service than that provided by governments to non-Indigenous, non-English speaking people who get a free 24-hour service. It seems yet again Indigenous people are faced with the choice of a second class service, or no service at all. I am also concerned that this service is not being provided in other States within Australia and that there has been no suggestion from the Commonwealth that this situation should be voluntarily addressed.
I have been a relative latecomer to the campaign to have an Indigenous Language Interpreter Service established in the NT. However, from the very beginning of my involvement, I have been overwhelmed by the ‘in-your-face’ injustice of not providing this most basic of services to the most disadvantaged of Australians. I can comprehend not providing the service to anyone at all, although I would disagree with it. I cannot comprehend why State, Territory and Commonwealth governments could recognise the need for people to have interpreters where they do not speak sufficient English in order to access basic government services, yet having recognised this need, deny Indigenous Australians the same rights. Why the blatant double standard? I think it is a question worth some consideration.
There were and are some practical difficulties in establishing an Indigenous interpreter service. When I began working in this area, some people were quick to point out all the reasons why an Indigenous language service should not and could not work, and to justify why no service existed. ‘There are too many languages.’ ‘There are too few speakers of the different languages.’ ‘Aboriginal kinship systems will prevent interpreters being able to interpret for family and community members.’ ‘The NT is too big, it will cost to much to run a service.’ ‘I’ve used Aboriginal interpreters and they are not as good as interpreters in other languages.’
To refute some of these arguments. There are over 40 major languages used by Aboriginal groups throughout the NT. However, linguists have identified 15 of the most commonly used languages and, in their opinion, it is possible to substantially meet interpreting needs by the use of interpreters in these 15 languages. Most Aboriginal people who speak an Indigenous language speak more than one Indigenous language. The OAD had little difficulty locating 87 interpreters covering 61 languages during the Trial Service in 1997. Family and kinship relationships do occasionally prohibit one person interpreting for another, but similar conflicts occur in non-Aboriginal ethnic groups in Australia, particularly when the group is a small one. A pool of interpreters easily overcomes this obstacle. The cost of the Trial Interpreter Service in 1999 was $110,105 for six months, hardly prohibitive. Many Aboriginal people have acted as interpreters on an ad hoc basis in the past, what the NT government likes to refer to as the ‘informal Aboriginal Interpreter Service’ that previously existed in the NT. Few of these people had received any training in interpreting and even fewer were paid for this work. To then argue that they were not as proficient as trained, paid interpreters in other languages is ridiculous.
Despite these refutations, it must be conceded that the difficulties in establishing an Aboriginal interpreter service are profound. It will take years of hard work and substantial ongoing funding to overcome them. However, the impressive interpreter services available in non-Indigenous languages have also taken years to develop to the standard they are at today. In my view, the difficulty of the task does not overcome the legitimate need for the service.
So, if not for these reasons, why have governments so persistently refused to provide this basic service. In my view, another possible explanation lies in the political reasoning behind the NT Chief Minister’s comments about it being akin to ‘providing wheelchairs to people who should be able to walk’. It seems that governments have difficulty arguing that their education systems are effective and appropriate when vast numbers of Australian-born Australians cannot speak the national language. Instead of taking a good hard look at how they provide education services to Indigenous people, they blame them for their inability to speak, what is to many of them, a second or third language. Blaming the victim has long been a successful method for Australian politicians to justify their unfair treatment of Indigenous people.
Another possible slant on this argument is that the fact that so many Indigenous people speak their own language rather than English confounds the belief that Aboriginal culture is a dying thing of the past, rather than a living part of the present. Of course, it is possible, as many have claimed, that elements of our governments are simply racist.
This latter view gains some support when you consider the Australian government’s recent response to the United Nations CERD Committee’s comments on the way in which it treats its Indigenous people. Australia’s answer was to criticise the CERD Committee and to review its ongoing involvement with the Committee. It seems that the adherence to basic human rights standards is reasonable for everyone else, but should not be applied to Australia’s treatment of its Indigenous people, that’s somehow different.
Ironically, having come so far in the fight to have a government-supported Aboriginal interpreter service in the NT, the next battle is to overcome the accepted norms of sub-standard communication that currently prevail amongst organisations that provide services to Aboriginal people. As noted at the start, many professionals working with Aboriginal people have, arguably of necessity, got used to a standard of communication way below that which is reasonable, or indeed, ethically acceptable. This is not to imply that these people are ignorant or racist or lazy — they are not. The practical realities for legal aid lawyers and medical staff are that without the support of their organisations, the added workload of locating and using an interpreter often means the choice between providing a responsible level of service to a few clients, and no service to the rest. It is a choice they should not have to make.
It is, therefore, the service provider organisations which need to be convinced that using interpreters will result in proper services being provided to Aboriginal clients, that financial and social cost savings will be made, and that they are legally required to employ interpreters where their clients do not speak sufficient English to safeguard their rights.
The obvious starting point to improve this situation is appropriate and relevant education sessions to inform staff that crosscultural awareness is more than a ‘politically correct’ nicety. Organisations also need to put in place practical mechanisms which both allow and encourage those working on the coal face to use interpreters without having to make the awful moral choice described above.
However, education will only be effective if organisations are persuaded they should and must use these interpreter services. The current level of usage of the Aboriginal Interpreter Service in the NT suggests that core organisations are not sufficiently persuaded. A number of people who have fought for an Aboriginal interpreter service say this change will only happen through litigation. The proponents of litigation argue that the only way in which the right to an interpreter can be enforced and protected is by legal requirement, be that by way of an action based on race discrimination, the right to a fair trial, or an action for professional negligence. Sadly, Australia’s record of dealings with its Indigenous people does tend to support the view that the ‘big stick’ of judicial decision will need to be wielded yet again to enforce a basic human right.
[*] Helena Blundell is Public Interest Advocate, North Australian Aboriginal Legal Aid Service
 R v Willie (1885) 7 QLJ (NC) 108.
 Australian Bureau of Statistics (ABS), 1996 Census of Population and Housing
 NT Correctional Services Annual Report 1998/99, p.84.
 Territory Health Services Annual Report 1998/99, p.45.
 ABS above.
 English literacy is a far bleaker picture see ‘Learning Lessons — An Independent Review of Indigenous Education in the Northern Territory’, NT Department of Education, Darwin, 1999.
 ABS above.
 Northern Territory Anti-Discrimination Commission, ‘Report: Inquiry into the Provision of an Interpreter Service in Aboriginal Languages by the Northern Territory Government’.
 24 November 1999, Catherine Munro AAP.
 Northern Territory Aboriginal Languages Interpreter Service Trial: Draft Evaluation Report 14 July 1997.
 Accreditation by the National Accreditation Authority for Translators and Interpreters (NAATI) which is responsible for accrediting all interpreters nationally, not just Indigenous.
 NT Anti-Discrimination Commission Report: Inquiry into the Provision of an Interpreter Service in Aboriginal Languages by the Northern Territory Government, p.64
 The Senate Legal and Constitutional Committee, Enquiry into the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999.
 The Senate Legal and Constitutional Committee, above, p.115.
 Commonwealth of Australia, Hansard, Senate, Senate Legal and Constitutional References Committee, 2 February, p.39.
 NT government, Hansard, 24 February 2000.
 Concluding Observations by the Committee on the Elimination of Racial Discrimination, 56th Session, 6-24 March 2000, p.5.
 ‘Northern Territory Aboriginal Languages Interpreter Service Trial: Draft Evaluation Report’, 14 July 1997, p.8.