Introduction

Contributed by PaulSheiner and KelsiForrest and current to 27 July 2018

Terminology

The term Aboriginal and Torres Strait Islander peoples recognises the different cultural groups still existing in WA. This diversity applies to Torres Strait Islanders as much as to Aboriginal peoples; there are different groups on the Torres Strait Islands with individual cultures. Alternatively, the name of the specific WA culture can be used when talking about that culture only, for example Noongar (South West), Yamatji (Mid-West), Wongi (Desert). It is common for Noongars to refer to all Aboriginal and Torres Strait Islander peoples as Noongars, for Kooris to call everyone else Kooris, and so on. “Aborigines”, “blacks”, terms relating to caste, and of course derogatory terms, are widely considered offensive.

If you have an Aboriginal or Torres Strait Islander client, it is important to build a relationship with them and ask who their mob is and where they are from. Asking about where an Aboriginal person comes from will also provide context for you in providing the assistance that they need.

Meaning

Australian bureaucracy has developed a definition of Aboriginal and Torres Strait Islander peoples for administrative purposes, used for example in determining eligibility for certain Commonwealth services or benefits. This definition of an Aboriginal person is also used in the native title context when prescribed body corporates are determining their membership.

Under this definition an Aboriginal or Torres Strait Islander person is a person who:

• is of Aboriginal or Torres Strait Islander descent; and
• identifies as an Aboriginal or Torres Strait Islander person; and
• is recognised by his or her community as an Aboriginal or Torres Strait Islander person.

Some organisations use Certificates of Aboriginality as proof of whether a person meets this definition or not.

Aboriginal and Torres Strait Islander Peoples in the mainstream legal system

It is important to bear in mind matters of cultural etiquette and language that impact on Aboriginal and Torres Strait Islander peoples’ dealings with the mainstream legal system. Everyone has a culture. Culture is a community’s way of doing things. Culture heavily influences a person’s communication style, the way they balance competing priorities such as work and family and appointments, the way they raise children, the way they deal with birth and death.

All cultures evolve over time. Most Australians do things differently today from how their ancestors did them two hundred years ago. Aboriginal and Torres Strait Islander peoples do not “lose” their culture if they drive a car or use a mobile phone, use modern gear when camping, buy a didgeridoo or paint materials instead of making them, hunt with a gun not a spear, or live in a city rather than a remote community.

In the court context, the existence and strength of negative stereotypes of Aboriginal and Torres Strait Islander cultures in Australia, be they conscious or unconscious, can lead to conclusions about a witness’s evidence based not on fact, but on erroneous assumptions arising from such stereotypes.

As there are dozens of specific Aboriginal and Torres Strait Islander cultures there are dozens of different cultural etiquettes. In a legal context, they occur in court, between parties of different cultures, between clients and lawyers, and between clients and experts. To avoid this occurring, it is necessary to use safeguards. Some types of safeguards are discussed in the following section.

Checklist to prevent miscommunication with Aboriginal and Torres Strait Islander witnesses or clients

If you are providing legal assistance in an area where English is not the preferred language and/or Aboriginal English is widely used, the below are potential safeguards to avoid misunderstandings:

• using an interpreter;
• ensuring the presence of a person who understands relevant culturally-specific communication mores and who will speak up to correct any misunderstandings;
• video-taping police and/or expert interviews so that any misunderstandings can be identified;
• the use of expert linguistic evidence;
• the use of culturally-appropriate communication conventions, such as allowing the person long pauses in which to think, not interrupting when the person is speaking etc;
• making sure everyone keeps spoken language plain;
• frequently checking to make sure everyone understands the same thing;
• confirming instructions and other important information in writing so the person can re-read it later or reading the information back to them to assist understanding;
• keeping Standard Australian English written material to a minimum and using language that is plain and tailored to a reader who may have a low literacy level in Standard Australian English;
• considering potential health problems such as the poor eyesight and hearing problems of many Aboriginal and Torres Strait Islander individuals (e.g. by providing large print and by not printing in colour);
• checking whether the person is not agreeing to something they do not understand or a desire to be co-operative or feeling intimidated by the situation.

It is noted that these methods are only a guide and ultimately, if you are dealing with Aboriginal clients frequently, it would be best to source training for ways of working with Aboriginal people. In addition, due to the diversity of Aboriginal Australia discussed earlier, these points may not be as relevant for Aboriginal people from an urban area but they are an important consideration to ensure that what is being discussed is clear.

Language

Many Aboriginal and Torres Strait Islander peoples speak English as a second (or third or fourth) language. If an Aboriginal or Torres Strait Islander person speaks English, he or she may be speaking Aboriginal English or Kriol. These are recognised by linguists as being different languages from Standard Australian English. This means that in a conversation between a person who speaks Standard Australian English and a person who speaks Aboriginal English or Kriol, what each person understands from the other person’s words may be different from what the person intends to communicate. This can have a significant impact on an Aboriginal or Torres Strait Islander individual’s dealings with the mainstream legal system.

In 2017, there was a high profile appeal case involving a young Aboriginal man Gene Gibson who had pleaded guilty to manslaughter. Gene Gibson has a mental impairment and English was his third language. One of the key issues considered by the Court was that when Gene Gibson met with police for interviewing and his lawyer for advice separately, on important occasions in the investigation and conviction process, there was no interpreter present. The WA Supreme Court of Appeal found that a miscarriage of justice occurred because his plea of guilty to manslaughter was entered in circumstances where the integrity of the plea was compromised because there was a likely he did not adequately understand:

• the legal process;
• the State’s case against him;
• the advice that his legal advisers gave him about his plea; or
• the options that were available to him, at the time he entered his plea, as well as the consequences of a plea of not guilty; and
• and therefore there was a real risk that the plea was not attributable to a genuine consciousness of guilt: Gene Gibson v Western Australia[2017] WASCA 141 at [157].