Introduction

Contributed by Dennis Eggington, Tonia Brajcich, Angela Bromfield, Diane Winter and Antonio Buto and current to 1 September 2005

TERMINOLOGY

The term Aboriginal and Torres Strait Islander peoples accurately recognises dozens of different cultural groups still existing in WA, instead of wrongly implying there is one generic culture. 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, Yamatji, Wongi, Bardi.
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.

MEANING

Australian bureaucracy has developed a definition of Aboriginal and Torres Strait Islander peoples or administrative purposes,used for example in determining eligibility for certain Commonwealth services or benefits.
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 particular witness’s evidence based not on fact, but on erroneous assumptions arising from such stereotypes. In the context of litigation involving Aboriginal and Torres Strait Islander peoples it is therefore important to check the basis for the witness making particular statements, to ascertain whether or not the information is true.

As there are dozens of specific Aboriginal and Torres Strait Islander cultures there are dozens of different cultural etiquettes. Nevertheless, three common etiquette issues that come up repeatedly in a mainstream legal context are:

• Different time priorities. Appointments may be attended early or late or not at all. This might be because of a different concept of time (for example, “sundown,” not 6pm), or the person does not own a calendar or watch, or a matter with higher cultural priority (such as a funeral) has intervened, or the person has limited access to transport or a telephone.
• It is often considered polite to communicate important information, such as instructions, face to face rather than by telephone or in writing.
• In some cases, a person is unable for cultural reasons (e.g. shame) to communicate certain relevant information to his or her lawyer or to the court.

Cultural differences lead to misunderstandings. 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 the language is to be Standard Australian English, possible safeguards to avoid misunderstanding could include the following:

a) using an interpreter;
b) ensuring the presence of a person who understands relevant culturally-specific communication mores and who will speak up to correct any misunderstandings;
c) video-taping police and/or expert interviews so that any misunderstandings can be identified;
d) the use of expert linguistic evidence;
e) 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;
f) making sure everyone keeps spoken language plain;
g) frequently checking to make sure everyone understands the same thing;
h) confirming instructions and other important information in writing so the person can re-read it later to assist understanding;
i) 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;
j) 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);
k) checking whether the person is not agreeing to something they do not understand out of shame or a desire to be co-operative or feeling intimidated by the situation.

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. For example, to a Noongar person, the phrase “to look after” or “bring up” a child means to receive Centrelink benefits for the child. In another contrast to standard Australian English, the verbs “to flog” and “to kill” sometimes mean to hit (for example, a slap) and sometimes mean to shame the person (without touching them). “To kill dead” means to cause actual death.