Alternative Law Journal
In broken English, the client tried to tell the judge that she did not speak or understand well. He told her to be quiet and listen to him. He then proceeded to ask her questions which in her anxious state she did not understand … eventually he resorted to a sort of pidgin English which, somehow, she made sense of. Greatly pleased, the Judge said, ‘you see, you can speak English when you want to’
This striking passage was later cited not only by an Australian textbook but also by a notable textbook of forensic linguistics published in the United Kingdom. As a result, the problems of equal opportunity in the Australian judicial system have drawn the attention of linguists globally.
According to a UK source, the Equal Treatment Bench Book (‘the Bench Book’), discrimination in the judicial system may be the result of such things as unawareness and thoughtlessness. However, the Bench Book and the Australian textbook lack a clear account of what is to be understood and how it should be understood, apart from the following point: ‘Just because someone remains silent does not mean that they necessarily understand, or that they feel they have been adequately understood. They may simply feel too intimidated, too inadequate or too inarticulate to speak up.’ It would not be greatly surprising if a judge who understood only this point was ‘greatly pleased’ by a litigant who expressed herself rather than just keeping silent. There is a marked shortage of reports about second language speaking litigants or witnesses in considering the correct appreciation of the need for conducting proceedings in a manner that takes into account language-oriented difficulties. In this respect, Roland Sussex argues the need for judges to ‘become more sensitised to the parameters of cultural diversity, correspondence and translation’.
This article expresses my own views of the disadvantages faced by a second language speaker in court and is based on my experiences as a second language speaking litigant. It also discusses examples of ongoing efforts by the court to mitigate these disadvantages.
I have been running a case in court as a litigant in person since 2003 with occasional assistance from a counsel or an interpreter. I had spent almost my entire life in Japan speaking Japanese until arriving in Australia in November 1999 as a Rotary scholar to undertake doctoral studies after completing research for my master’s degree in law in Japan. My research area (copyright law) has nothing to do with my action primarily under consumer protection law and, in my view, my research helps little to overcome the language-oriented disadvantages.
This article was written by taking the following steps: first, I classified my experiences in court of what I had observed as disadvantages caused by my language proficiency into five categories; and then I analysed the relevant transcripts of the proceedings and the judgments in these five categories. Observation of the disadvantages solely depends on my individual perceptions, and therefore, does not necessarily represent the experience of second language speakers generally. However, by providing an example of a second language speaker’s viewpoint, this article will achieve its objective.
While this article deals with the ‘disadvantages’ I experienced, the disadvantages might not necessarily raise issues of procedural fairness or affect the outcome of these proceedings. This article does not examine each proceeding.
A disadvantage for a second language speaker lies in a linguistic phenomenon which itself is not necessarily a disadvantage. Where a judge fails to appreciate the need to respond to a certain linguistic phenomenon, the phenomenon takes on the nature of a disadvantage. The categories of disadvantage below were classified by the types of misapprehension or the lack of comprehension of these linguistic phenomena.
A second language speaker could face the court’s unawareness or misapprehension even before a hearing. The assumption of the court tends to be that the level of literal language command is equivalent to that of oral language command. Therefore, despite this assumption not necessarily being correct, where the documents presented to the court by a second language speaker are comprehensible, the court tends to deny the second language speaker access to an interpreter.
For example, after filing an application, I applied by email to the court registry for the engagement of an interpreter. The Registrar responded and notified me that the docket judge had rejected the engagement of an interpreter. No reason was given for his rejection but Dowsett J later mentioned this issue in one of his judgments:
She [Ogawa] had prepared various documents in connection with the application, including an outline of argument, all of which were in reasonably good, idiomatic English. … I find as a matter of fact that the applicant [Ogawa] is competent to express herself in English and understands English, both written and oral.
Justice Kenny took a similar line in another matter. In that matter, Kenny J did not have any opportunity to meet or speak with me because I was represented by counsel. However, she had an opportunity to see a notice of motion and affidavit prepared and sworn by me. At the first directions hearing, Kenny J stated that: ‘It occurs to me though that Ms Ogawa is clearly capable of organising herself and understanding what is going on’.
Oddly enough, neither judge ever mentioned possible aids such as a grammar checker, a dictionary or the like, as if they thought these aids would have no effect.
At a hearing, even though an interpreter is engaged for a second language speaker, the majority of judges prefer to try first to proceed without an interpreter to assess the second language speaker’s language proficiency. If a second language speaker can hold a conversation which makes sense to a judge, the judge is most likely not to allow the second language speaker to rely on an interpreter. In my litigation this position was often maintained even though I explained that I could not understand all of the dialogue or that I could say less in English than in my first language.
The assumption the judge makes in such decisions seems to be:
• a conversation cannot take place unless all involved in the conversation understand the whole dialogue perfectly (in other words, the court believes that it correctly understands what the applicant said and
that what the court said is correctly understood by the applicant)
• on the basis of this assumption, the applicant who can hold a conversation which is (from the court’s perspective) perfect must be able to say everything they wish to say without any difficulty.
Phipps FM on one occasion proceeded with a case involving me when I appeared via videolink to the court without an interpreter:
HIS HONOUR: Can you hear all this, Ms Ogawa?
MS OGAWA: Well, I have a little bit of difficulty ---
MR GARNER: I’ll slow down.
HIS HONOUR: Yes, slow down.
Phipps FM apparently considered that he understood what I had said and hence continued the proceedings without any problem on his part with the co-operation of Mr Garner of counsel who slowed down his speech in making submissions. I could not hear what Mr Garner said since he did not speak up.
On a different occasion, Gummow J had a summons before him seeking an order to waive the production of application books (which I referred to as appeal books):
HIS HONOUR: No, I am not interested in your financial — no, Ms Ogawa. At the moment what you have is a request for dispensation of the requirements of the rules that you prepare an application book.
MS OGAWA: Yes ---
HIS HONOUR: Having heard what you say, I am not prepared to grant you that dispensation.
MS OGAWA: …Corporation Limited, 355 of 1998, Gaudron J on two separate occasions ordered that the appeal book production be waived.
HIS HONOUR: That is fees. We are not dealing with fees; we are dealing with preparation of the book.
As recorded with ‘…’ immediately before ‘Corporation Limited, 355 of 1998’, the court reporter obviously could not understand what I said. Neither did Gummow J. What I said was ‘Mathews v Telstra Corporation Limited, B55 of 1998’, a case in which preparation of books was waived. Gummow J seems to have believed that I referred to another case in which fee waiver had been an issue. I could not find the right expression to point out the judge’s misunderstanding and the judge moved on.
One of the most difficult tasks for a second language speaking litigant is to convince the court that they require people to speak louder. A second language speaker’s request for the volume of a voice to be raised is often taken as a request for slower speech. The Phipps FM case previously mentioned is a good example.
There seems to be a strong assumption overriding the request for a louder voice that, if a second language speaker cannot understand what was said, the reason is always that the speech was too fast. On one occasion, Marshall J asked me whether I had understood what he said:
HIS HONOUR: … Do you have any questions about what I said this morning?
MS OGAWA: Yes, I’m sure that I can’t understand. Your Honour stated the hearing of the motion, it is [indistinct] stated but it’s only an examination-in-chief.
HIS HONOUR: No, what I said and I’ll repeat it very slowly, is that …
The assumption of judges that slow speech always helps a second language speaker tends to cause two problems. The first and obvious problem is that slow speech makes it more difficult to comprehend what was said in essence. This is particularly so where there are unknown words or phrases included in the speech. It makes it more difficult to rely on the context to guess these unknown words or phrases if the speech is too slow.
The second problem is that slow speech results in intervals between phrases or sentences for a second language speaker to easily interrupt the speech in order to ask questions to clarify their uncertainty in understanding the meaning of a statement. From the second language speaker’s point of view, it is always better to remove uncertainty before going to the next statement. However, interrupting other people’s submissions or court’s comments is not acceptable in a legal proceeding.
These two problems resulting from slow speech often appear in the form of confusion in the courtroom without the cause of the confusion being noticed by judges. For example, North J made special effort to accommodate my needs by speaking slowly:
HIS HONOUR: Yes, let me hear what she says in response to that, Mr Garner. Ms Ogawa ---
MS OGAWA: Yes.
HIS HONOUR: --- Mr Garner has responded to the one point that you’ve made in relation to the adjournment order made on 27 July. You say that if a stay were refused, your appeal against that order would be rendered nugatory. He says that’s not so because you can always appeal against the order made by the magistrate inter alia on the basis ---
MS OGAWA: Well, if they’re saying that ---
HIS HONOUR: Just perhaps let me — just let me finish perhaps.
MS OGAWA: I’m sorry.
HIS HONOUR: Then you might understand the ---
MS OGAWA: Yes.
HIS HONOUR: --- full argument. Inter alia on the basis that, as you put it, the magistrate was wrong in refusing to transfer the matter back to the Federal Court. What do you say to that?
MS OGAWA: Sorry?
HIS HONOUR: What do you say to that argument? What do you say in response to Mr Garner’s argument that your ---
MS OGAWA: Well, I mean that his argument is that I can appeal to his Honour’s next order, so I don’t have to argue now. Is that his argument? I really quite don’t understand.
HIS HONOUR: Well ---
MS OGAWA: If that’s the case ---
HIS HONOUR: Just a moment, Ms Ogawa. Let me try and explain to you what his argument is …
When a second language speaker informs the court that they could not understand, most judges repeat what was said in attempting to have them understand. However, not all judges follow this course.
Mullins J, on one occasion, invited me to tell the court which part I could not understand. Apparently, Mullins J considered that I must be able to identify what I could understand and what I could not in the dialogue held in the courtroom.
The difficulty of this was demonstrated by an interpreter who appeared before Finkelstein J. The Transcript of Proceedings records as follows:
MS NESKOVCIN: … There have been occasions when counsel have not been available to assist her or have not assisted her on a particular day for some other reason which I am not aware of. If your Honour can do anything to facilitate that in terms of making a fresh referral we would encourage it.
HIS HONOUR: I will, yes. And one of the reasons that motivates me is that the minute I just mentioned it’s more important than just this case ---
MS OGAWA: His Honour’s statement cannot be heard if you speak so — sorry.
THE INTERPRETER: I try to do a little bit but probably I shouldn’t.
HIS HONOUR: Try to do what?
THE INTERPRETER: I try to stop spontaneously where I can understand to pass it on but it’s confusing her [Ogawa] more. So, I will just let her listen.
What the interpreter did ‘a little bit’ was speaking to me in Japanese about what the interpreter thought Ms Neskovcin was saying. I was informed by the interpreter in Japanese that: ‘A meeting could not be held previously but another meeting will be arranged to help you’. I could not immediately understand what was going on but soon realised that an English word ‘council’ (not ‘counsel’) could be translated into a word in Japanese meaning ‘a meeting’. I requested the interpreter to be quiet.
Throughout the proceeding, the interpreter was not aware of the error she had made. Therefore, the interpreter did not report to Finkelstein J that she had wrongly interpreted the dialogue.
Identifying that part of the dialogue which one could not understand is not an easy task but not a mission impossible. A different interpreter achieved this task before Marshall J:
HIS HONOUR: … the other side gives notice that they want them there in court. It’s quite a usual order and I would have to have some intelligent basis not to make it.
INTERPRETER: Could you please say that again? What is ‘other’?
HIS HONOUR: Other? The other one, the other party — o-t-h-e-r.
INTERPRETER: Yes, I understand that. Excuse me.
The transcript does not record the tone of each statement. When the interpreter could not pick up the word ‘other’ (which, according to the interpreter, sounded more like ‘abba’) and asked about it, Marshall J was extremely irritated and yelled at her, ‘o-t-h-e-r’! So much so, the interpreter quitted accepting court work and Marshall J has never agreed to arrange an interpreter for me in proceedings before him again.
It is a challenging task for judges to secure justice to a participant in legal proceedings whose first language is not the one spoken in court. As examined above, detecting the language-oriented disadvantages of these people requires careful observation. Moreover, even if the disadvantages are correctly apprehended, there seems to be no versatile prescription without side effect. Nevertheless, judges’ careful treatment makes a difference.
While engaging an interpreter is an obvious means to mitigate disadvantages of a second language speaker in court, a competent interpreter might not be readily available. In the Federal Court, when the Queensland District Registry failed to arrange an interpreter, the Victoria District Registry arranged one. On that occasion, the interpreter located in Victoria provided the interpreting services to the second language speaker via video link to Queensland. The federal courts nowadays are fully equipped with video and audio link facilities in order to accommodate increasing interstate litigation and the Federal Court made good use of it. With the current system, the voices of both an interpreter and people speaking in court come through the same sound system at the second language speaker’s end making it difficult to pick up either of them. While there are shortcomings at the present time, remote interpreting seems to have potential.
On a different occasion, immediately after the Finkelstein J’s case previously referred to, Finkelstein J prior to the subsequent proceeding advised me the qualifications of the available interpreters for the next proceeding. Having been thus warned, before the commencement of the proceeding I asked the interpreter to translate a few key words that would be central to the upcoming proceeding. The interpreter could not translate them. Both the interpreter and I recognised the problem we were facing, discussed possible ways to proceed and informed Finkelstein J of them. It might be helpful if an outline of submissions or a summary of argument is presented to interpreters before proceedings to give them an opportunity to consider whether they are capable of undertaking the assignments.
If a second language speaker involved in a legal proceeding is not a witness but a litigant, making better use of a transcript is an option to mitigate disadvantages. On one occasion, Ryan J having realised the difficulty of arranging a qualified interpreter for me, proposed a procedure specific to the proceeding. I had an opportunity to say anything I wished to say. However, since I might not necessarily be able to say everything I wished to say and I might not understand everything the other party said, I did not have to make all submissions in court. The court arranged a transcript of the hearing and I could make written submissions after reading the transcript and learning what happened.
This way is not flawless in that I could have lost my opportunity to communicate with the court so that it might have assisted me during my submissions. Nevertheless, from my point of view, it is better to have some clue to the proceeding rather than nothing. The court’s effort to go through an extra step of continuing proceedings on papers was worthwhile particularly since the court can always re-list the matter for further hearing if it finds necessary.
As demonstrated above, a number of instances where a second language speaker in court could suffer disadvantages caused by their insufficient command of language can be avoided simply by a judge’s awareness of the situation. Further instances of a second language speaker suffering disadvantages can be mitigated with a little effort on the part of the court. Court officers, counsel, lawyers and litigants themselves — as well as judges — should be reminded that: ‘people who have difficulty in coping with the language, procedures or facilities of courts or tribunals are equally entitled to fairness and justice’. ‘Ensuring fairness and equality of opportunity may mean providing special or different treatment’.
[*] MEGUMI OGAWA is a Research Fellow at the Media Network Centre, Waseda University, Japan and a PhD Candidate at the University of Queensland Law School.
© 2007 Megumi Ogawa
 Commonwealth Attorney-General’s Department, Access to Interpreters in the Australian Legal System: Report (1991), 51, [3.4.10].
 See, Kathy Laster and Veronica Taylor, Interpreters and the Legal System (1994) 89.
 J Gibbons, Forensic Linguistics: An Introduction to Language in the Justice System (2003), 228.
 Judicial Studies Board, Equal Treatment Bench Book <http://www.jsboard.co.uk/etac/etbb/index.htm> at 18 January 2007 (‘the Bench Book’). The Judicial Studies Board is comprised primarily of representatives of the judiciary, the magistracy and tribunals and provides training for all judicial officers. See, About Us at the website.
 Ibid, s 1.1.2 ‘Inequality’.
 Ibid, ch 1.1.
 Roland Sussex, ‘Intercultural Communication and the Language of the Law’ (2004) 78 Australian Law Journal 530, 540.
 See, eg, Megumi Ogawa, Protection of Broadcasters’ Rights (2006).
 Ogawa v Secretary, Department of Education, Science and Training  FCA 1472, 78.
 Transcript of Proceedings, Ogawa v University of Melbourne, (Federal Court of Australia, 1 October 2004), VID936 of 2004 and VID1130 of 2004, 6.
 See, eg, Transcript of Proceedings, Ogawa v University of Melbourne (High Court, Hayne J)  HCATrans 404, line 343.
 See, eg, Transcript of Proceedings, Ogawa v University of Melbourne, (Federal Court of Australia, French J, 12 September 2005) VID835 of 2005; and Transcript of Proceedings, Ogawa v Spender, (Federal Court of Australia, Kiefel J, 15 February 2006) QUD582 of 2005.
 Transcript of Proceedings, Ogawa v University of Melbourne, (Federal Magistrates Court, 11 June 2004), MZ463 of 2004, 3. In a transcript, ‘---’ represents that the statement was interrupted.
 Transcript of Proceedings, Ogawa v University of Melbourne (High Court)  HCATrans 59, lines 165–179.
 Transcript of Proceedings, Matthews v Telstra Corporation Limited, B55/1998 (18 May 1999) <http://www.austlii.edu.au/au/other/hca/transcripts/1998/B55/1.html> and Transcript of Proceedings, Mathews v Telstra Corporation Ltd, B55/1998 (11 June 1999), <http://www.austlii.edu.au/au/other/hca/transcripts/1998/B55/2.html> .
 Transcript of Proceedings, Ogawa v University of Melbourne (Federal Court of Australia, 5 March 2004), Q136 of 2003, 3. The author omitted the irrelevant part and inserted ‘…’.
 Transcript of Proceedings, Ogawa v University of Melbourne, (Federal Court of Australia, 10 August 2004), V936 of 2004, 5.
 Transcript of Proceedings, Ogawa v Spender (Supreme Court of Queensland, 13 December 2005).
 Transcript of Proceedings, Ogawa v Phipps and Another, Federal Court of Australia, VID1000 of 2005, 16 September 2005, 18–19.
 Transcript of Proceedings, Ogawa v University of Melbourne, (Federal Court of Australia, 2 February 2004), Q136 of 2003, 6.
 Transcript of Proceedings, Ogawa v Phipps and another, (Federal Court of Australia, 16 September 2005) VID1000 of 2005.
 Ogawa v University of Melbourne, Transcript of Proceeding, (Federal Court of Australia, 26 April 2005), QUD245 of 2004, 3a.
 Justice RD Nicholson of the Federal Court of Australia cited a number of cases in which the need for the court to assist an unrepresented litigant to diminish their disadvantages is pronounced, which principles seem to apply to a second language speaking litigant to diminish their disadvantages. See, R D Nicholson, ‘Litigants in Person’ (2001) 5 The Judicial Review 181.
 The Bench Book, above n 4, ch 1.