The Human Rights You Lose When You Don't Speak English
Does Australia have enough systems in place to ensure social equity for everyone?
Illustration by Ben Thomson
This article is supported by Monash University's Faculty of Arts. In this series, we ask a bunch of professors about issues relating to their industry.
After almost five years in incarceration, Gene Gibson walked free in April this year. The 30 year-old Indigenous man from the Western Desert had been convicted of beating to death a young guy named Josh Warnake outside a Broome nightclub in 2010.
Gene pleaded guilty to manslaughter but in a unanimous court decision that conviction was overturned because Gene didn’t completely understand the process or instructions from his interpreter when entering his plea. Gene’s first language is Pintupi and he speaks limited English. He also has a cognitive impairment. None of this was taken into account during his interviews, which seem a fairly obvious departure from due process—and one that's all too common when Indigenous people encounter the legal system.
The case underscores the relationship between language and justice. Not just in a legal sense, but in many humanitarian and crisis contexts around the world. Be it conflict zones, natural disasters, refugee camps, or terrorism trials.
To get a better sense of how language skills affect affect social equality, we spoke to translation and interpreting experts Marc Orlando and Silvia Martinez.
VICE: Hey guys, can we start with the sorts of failures or injustices Gene Gibson’s case exposed in the Australian legal system?
Marc: Mr Gibson wasn't able to express himself in his own language or understand what was going on, and no interpreter was called on the day he was sentenced. As in the US where many people are unfairly sentenced because of language barriers, there are a lot of cases with Aboriginal Australians where justice isn't delivered because interpreting services aren't available. Over the past 10 or 15 years, we have seen legal acts passed in Australia and many other countries, like in the EU, confirming the right to be assisted by an interpreter in any legal or healthcare context.
Silvia: It’s not just about a person being physically present at their own trial, they need to be able to properly tell their story. Interpreters need to learn that it’s about delivery as much as content, because the jury is looking for credibility and reliability. So their assessment has to be the same as that of a witness who is delivering their testimony in their own language. People who speak Australian Aboriginal languages often say this is the most challenging situation because the number of speakers of many of these languages is even smaller than in minority migrant communities. There are many examples of miscarriages of justice because of this gap.
What skills does an interpreter need?
Marc: Just because you have two hands, does not mean you can play the piano, just as having two languages does not make you an interpreter. Anyone working in the humanitarian or aid sector will tell you about the problems created by using interpreters who have not been properly trained.
Silvia: Being an interpreter is also about having a full understanding of the cultures that languages carry. As a language professional, you need to have the skills to convey the message of another person as if they spoke the same language, so we have to be experts in knowing the different contexts and strategies for dealing with different pressures. The difference between someone who operates across languages and a professional interpreter is extremely apparent in medical settings. For example, there was a case that involved an elderly Portuguese-speaking woman who turned up at a hospital saying that she was ‘constipado’—a word which sounds ‘constipated’, but actually means cold. The person doing the interpreting was another patient and the woman was treated for issues relating to her bowel. She landed in ER with serious problems that resulted in death. So in situations like these, accuracy and professionalism is about life risks, not just a situational problem.
I’ve heard of many situations where interpreters’ biases have seriously affected the outcome—for example, prejudices about gender or sexuality in reporting cases of sexual violence among refugees.
Marc: Being a professional is not only an issue of impartiality, but has to do with all aspects of confidentiality. An interpreter has to learn to develop emotional neutrality. And if you are using a family member to interpret, as has been common practice—especially in medical settings—this is always going to be a problem. Not having impartiality and emotional neutrality often results in not passing on the right information and not using the truth as it is.
Silvia: Untrained interpreters can adversely intervene in sensitive cases, such as those involving family violence, where they have not been impartial or failed to provide accurate renditions of what was said. For example, trying to convince the woman to reconcile with her partner; criticising the woman for taking legal action; not interpreting words like 'penis' or 'vagina'. The Victorian Royal Commission into Family Violence recommended that interpreters receive training specifically for working in these settings, resulting in increased support from the Victorian Government for this training to be provided through the Monash T&I professional development program. We’ve been able to deliver training to 116 interpreters covering over 100 languages in the last year.
How equipped is Australia to deliver real social equality and inclusion across language barriers?
Silvia: This is about recognising the right to access public services that affect really significant aspects of people’s lives—where they should have the right to communicate in the most direct way. On a national level, there has been an increased understanding of the fact that if you want full social inclusion, you have to deliver services and access through language, which means having well-trained interpreters. For example, in NSW you now cannot have any kind of medical conversation about consent without a professional interpreter, and there is an extremely solid national protocol for working with interpreters for members of the judiciary. Of course, there are always challenges in terms of availability in languages new to Australia—for example, Farsi or African languages.
Marc: Australia is very multicultural, but also very multilingual—27 per cent of Australians speak another language at home. In the 1970s, there was a move away from assimilation and we have seen a real political shift to cultivate multiculturalism. I believe that compared to many places in Europe, we are better organised around respecting other languages and cultures. What we realise now is that it is important to train not just interpreters, but also the users—whether journalists or doctor or judges. This is not only for the benefit of non-English-speaking migrants, but for the benefit of Australian society. We can all gain from understanding different stories and identities and cultures.
This article is supported by Monash University's Faculty of Arts. You can find out more about the Master of Interpreting and Translation Studies here.