Melissa Perry* THE LAW, EQUALITY AND INCLUSIVENESS IN A CULTURALLY AND LINGUISTICALLY DIVERSE SOCIETY I INTRODUCTION mong the many contributions made to Australian legal scholarship of its first 39 volumes, the Adelaide Law Review has highlighted issues facing Aculturally diverse groups in the community in a series of important contribu­ tions analysing Indigenous Australians’ experience of the legal system in relation to customary law1 and criminal justice,2 and in legal education.3 This article draws on these contributions and extends the discussion to the relation ship between cultural diversity in Australia and aspects of the law. Given the importance of embracing and benefiting from the cultural diversity that defines Australian society, it will no doubt be important for the Review in future volumes to consider this issue. Part II briefly outlines the ubiquity and significance of cultural diversity in Australia. Part III identifies key barriers to accessing justice in our culturally and linguistic­ ally diverse society, focussing upon the challenge that linguistic diversity poses to effective participation in the justice system, including the Judicial Council on Cultural Diversity’s guidelines on working with interpreters in courts and tribunals. Part IV discusses the role of Australia’s anti­discrimination law. Finally, Part V considers cultural diversity within the legal profession and the courts, and the proactive steps required to address discrimination and inequality more broadly. * Justice of the Federal Court of Australia; LLB (Hons) (Adel); LLM, PhD (Cantab); FAAL. This article draws on a number of presentations by the author including ‘Challenges for Justice in a Culturally and Linguistically Diverse Society’ (Speech, Anglo­Australasian Lawyers Association, Sydney, 15 March 2017) and ‘Shattering Glass Ceilings: Benefiting from Diversity’ (Speech, Cambridge Society of NSW, Sydney, 2 September 2015). The author also expresses her thanks to her Associate, Wee­An Tan, for his invaluable assistance with the preparation of this article. 1 Justice MD Kirby, ‘TGH Strehlow and Aboriginal Customary Laws’ (1980) 7(2) Adelaide Law Review 172. 2 Dean Mildren, ‘Public Lecture: Aboriginals in the Criminal Justice System’ (2008) 29(1) Adelaide Law Review 7; Michael Kirby, ‘Black and White Lessons for the Australian Judiciary’ (2002) 23(2) Adelaide Law Review 195. 3 Heather Douglas, ‘This is Not Just about Me: Indigenous Students’ Insights about Law School Study’ (1998) 20(2) Adelaide Law Review 315; Peter Devonshire, ‘Indigenous Students at Law School: Comparative Perspectives’ (2014) 35(2) Adelaide Law Review 309. PERRY — THE LAW, EQUALITY AND INCLUSIVENESS IN A 274 CULTURALLY AND LINGUISTICALLY DIVERSE SOCIETY II CULTURAL DIVERSITY IN AUSTRALIA Australia is one of the most culturally diverse societies in the world today. Aboriginal and Torres Strait Islander peoples have the longest continuing culture in the world, and are estimated to number 798,400, or 3.3% of the total population of Australia.4 The Australian Bureau of Statistics reports that in 2018, 7.3 million people resident in Australia, or 29% of the population, were born overseas.5 The 2016 Census revealed that Australia is a nation of people from over 190 different countries and 300 different ancestries.6 Further, when account is taken of all of the languages spoken in Australia, including those spoken by Indigenous peoples, the 2016 Census reported that over 300 different languages are spoken in Australian homes, and that approximately one­fifth (21%) of Australians speak a language other than English at home.7 Of these, approxi­ mately 3.5% reported that they spoke English ‘not well’ or ‘not at all’.8 There are also considerable variations in the composition and needs of different regions within Australia with, for example, 88% of people in Tasmania speaking only English at home as opposed to 58% in the Northern Territory.9 III ACCESS TO JUSTICE A The JCCD The Judicial Council on Cultural Diversity (‘JCCD’), which reports to the Council of Chief Justices, was formed to address the needs of Australia’s culturally and lin­ guistically diverse society in accessing justice. Its purpose is to develop a framework 4 Australian Bureau of Statistics, Estimates of Aboriginal and Torres Strait Islander Australians, June 2016 (Catalogue No 3238.0.55.001, 18 September 2018) <http:// www.abs.gov.au/ausstats/[email protected]/mf/3238.0.55.001>. 5 Australian Bureau of Statistics, Australia’s Population by Country of Birth, Migration, Australia, 2017–18 (Catalogue No 3412.0, 3 April 2019) <http://www.abs.gov.au/ ausstats/[email protected]/Latestproducts/3412.0Main%20Features22017­18?opendocu­ ment&tabname=Summary&prodno=3412.0&issue=2017­18&num=&view=>. 6 Australian Bureau of Statistics, Cultural Diversity in Australia, 2016, Census of Population and Housing: Reflecting Australia — Stories from the Census 2016 (Catalogue No 2071.0, 28 June 2017) <http://www.abs.gov.au/ausstats/[email protected]/ Lookup/by%20Subject/2071.0~2016~Main%20Features~Cultural%20Diversity%20 Article~60>. 7 Australian Bureau of Statistics, Census Reveals a Fast Changing, Culturally Diverse Nation (Media Release, 27 June 2017) <http://www.abs.gov.au/ausstats/[email protected]/ lookup/Media%20Release3>. 8 See Ingrid Piller, ‘FactCheck: Do “Over a Million” People in Australia Not Speak English “Well or at All”?’ The Conversation (online, 27 September 2018) <https:// theconversation.com/factcheck­do­over­a­million­people­in­australia­not­speak english­well­or­at­all­101461>. 9 Australian Bureau of Statistics (n 7). (2019) 40 Adelaide Law Review 275 to support procedural fairness and equality of treatment for all court users regardless of race, colour, religion, or national or ethnic origin, and to promote public trust and confidence in Australian courts and the judiciary. B The Complexity of Issues Posed by Cultural and Linguistic Diversity The existence of many and complex barriers to access to justice for members of Aboriginal and Torres Strait Islander communities is well documented. Tragically, these may result in some of the most vulnerable members of those communities failing to seek help through the court system when it is most required. As, for example, the JCCD report on Indigenous women’s experience of the courts explained: Factors such as intergenerational trauma and experiences of discrimination, racism and poverty all form a key part of Aboriginal and Torres Strait Islander experiences. In addition, Aboriginal and Torres Strait Islander women’s per­ spectives of the justice system were shaped by dealings with the justice system overall — police, child protection, registry staff, corrections authorities, lawyers and judicial officers.10 Issues repeatedly raised included fear that reporting violence would result in the authorities removing children, and that the court was seen as a potentially unsafe place and not a place for resolving problems.11 Equally, while many of the barriers to justice differ, from the perspective of migrants and refugees, proceedings in our courts are proceedings in a foreign court, in a foreign land, conducted in a foreign language. Some may also fear and distrust government and the courts, particularly those seeking asylum from broken or corrupt states, and they are likely to lack an understanding of Australian law and court procedures. The impression of justice in our courts that such litigants will take away with them will be affected in large part by the respect with which they are treated, how well they understand the proceedings, and how well they are understood. The importance of according respect within the system was borne out by the JCCD report on migrant and refugee women’s experience of the courts, which found that positive experiences in the court system tended to assist in the healing process and, importantly also that: women’s satisfaction with court processes was, in the clear majority of cases, not linked to whether they received the outcome they sought. Rather, it was linked to how accessible the courts and court processes were, how women were treated and whether they felt listened to.12 10 Judicial Council on Cultural Diversity, The Path to Justice: Aboriginal and Torres Strait Islander Women’s Experience of the Courts (Report, 20 March 2016) 7 (‘Aboriginal and Torres Strait Islander Women’s Experience of the Courts’). 11 Ibid 7–8. 12 Judicial Council on Cultural Diversity, The Path to Justice: Migrant and Refugee Women’s Experience of the Courts (Report, 20 March 2016) 36–7 (‘Migrant and Refugee Women’s Experience of the Courts’). PERRY — THE LAW, EQUALITY AND INCLUSIVENESS IN A 276 CULTURALLY AND LINGUISTICALLY DIVERSE SOCIETY I have earlier referred to some of the statistics illustrating the extent of linguistic diversity within Australia. While indicative of the scale of the issue, these statistics still mask the extent and complexity of the problem of ensuring that those coming before our courts and tribunals are linguistically present. For example, the figure of 300 languages ignores the prevalence of dialects within those broad language descriptions which may play out in differences not only in accent or words, but also in grammatical structure and tense usage.13 Further, a person who may communi­ cate competently in ordinary day­to­day interactions, may nonetheless lack sufficient proficiency to understand the complexity of language and concepts in a courtroom setting and the stresses of that alien environment may compound these difficulties. Cultural and other sensitivities of the litigant or witness may also need to be taken into account.14 Finally, there are widespread concerns about the availability of professional inter­ preters, particularly at the higher levels of accreditation. Indeed, for over two thirds of the languages spoken in Australia (and often those spoken by new arrivals) there are no accredited interpreters.15 Practitioners are also leaving the interpreting profession due to poor working conditions and rates of pay.16 Not surprisingly, therefore, language is one of the chief barriers faced by migrants and refugees seeking to engage the court system.