Justice in English-Only

Abstract

Australia has long sought to portray itself as a proudly multicultural nation that claims to welcome and celebrate cultural and linguistic diversity. This article seeks to illustrate how the law, legal discourse and precedent continue to exclude and symbolically punish language-minoritised people, through reinforcing unofficial ‘English-only’ rules. This is accompanied by efforts to deny or downplay the racialised effects of linguistic marginalisation. ‘Equality’ discourses are especially powerful in this kind of denialism, where particular groups are portrayed as equally disadvantaged by particular language requirements needed to exercise and operationalise certain legal rights. This construct of a ‘shared inequality’ when it comes to language is effective in denying that laws can operate in a racially discriminatory manner. At an interactional level, racialised ‘English-only’ rules are reinforced through the policing and assessing of the language practices of minoritised witnesses and accused people. Speaking the ‘right way’ becomes particularly relevant when courtroom credibility assessments are tied to how a person speaks. In this regards, English monolingualism is constructed as the normative benchmark against which the linguistic and racial ‘Other’ is adjudged. This means that a failure to meet this standard can become a basis for questioning a person's credibility and believability as a witness.

Introduction

With a focus on criminal legal systems in Australia, this article aims to illustrate how legal discourse, precedent and discretion enact a kind of linguistic gatekeeping that reinforces monolingual ‘English-only’ rules. This gatekeeping tacitly accepts that particular language norms, governed by a dominant ‘national’ language, can have a discriminatory impact on language-minoritised people faced with a legal problem. Moreover, this gatekeeping is accompanied by narratives that downplay, or actively deny, the racialised effects of linguistic discrimination. In denying what has been called ‘linguistic racism’ ¹ (Dovchin, 2019; Wang and Dovchin, 2022; Dobinson and Mercieca, 2020), judicial reasoning can further reify the law as a kind of ‘white space’ (Anderson, 2015; Hill, 1998) which actively excludes the racial and linguistic ‘Other’. This further reinforces longstanding historical legacies in an Australian context where language norms and assessments have often been tools of exclusion as well as a mechanism for assimilationism (Ndhlovu, 2008 2014).

The effort to deny racism through the willing acceptance of linguistic discrimination is premised upon discursive framings that co-construct and then disentangle linguistic and racial categories. In doing so, ‘language’ is depicted as a changeable, or ‘fixable’, characteristic which stands in contrast to the ‘fixed’, apparently immutable categories of race, ethnicity, colour and national origin contained under Australia's Racial Discrimination Act 1975 (Cth.) As will be shown, through the framing of ‘language’ as a fixable ‘personal characteristic’, the full enjoyment of certain legal rights becomes contingent upon the individual meeting the requisite language standards imposed by the State and symbolically reinforced within its institutions. Language-minoritised applicants are seen as personally responsible for any inequalities or disadvantages they face when navigating the criminal legal system. This is bound to the recognition of a hegemonic ‘national’ language that enacts the terms on which one must engage with the formal structures of the law. Within this context, legal discourse, precedent and action on the part of institutional actors recreate a kind of linguistic border-making (Khan, 2021) in defining who is legitimately subject to rights and protections.

As will also be shown, racialised linguistic gatekeeping is also manifested in micro-level policing of linguistic performance when witness credibility assessments are tied to how a person speaks in court. To this end, who is seen as ‘credible’ can be bound to an English monolingual norm that creates a standardising benchmark against which language-minoritised witnesses come to be assessed. A failure to ‘fit’ with this norm, can risk the potential for a kind of testimonial injustice (Fricker, 2007) where the voices of witnesses who engage in multilingual communication with interpreter access are uniquely undermined. Assessments tied to how one speaks can operate as another means through which racially and linguistically minoritised witnesses come to be deemed as prevaricating and inherently worthy of suspicion or disbelief (Carlin, 2016; Rickford and King, 2016).

To illustrate these claims, this paper will undertake a critical analysis of Australian criminal appeal judgements where a central claim by the applicant was that they had been denied rights or procedural fairness on the basis of language difference. These cases illustrate the ways that liberal discourses espousing rights and equality before the law aid in masking the racialised impacts of linguistic inequality and subordination. This, in turn, reaffirms the normativity of the white, English-speaking monolingual subject as a standard for ‘equal’ status and helps to perpetuate unequal racial and linguistic hierarchies. Moreover, there is an implicit message that these structurally embedded hierarchies can be overcome, and ‘equality’ realised, if one simply learns to speak and understand English to a standard deemed ‘acceptable’ within legal institutional contexts.

In the main, scholarship around language discrimination, subordination and marginalisation has focused on educational contexts (Solorzano, 2019; Solorzano and Yosso, 2001; Flores, 2020; Motha, 2014; Pérez Huber, 2011; Flores, 2016; Flores and Rosa, 2015), the workplace (Perea, 1992; Perea, 1989; Matsuda, 1991) and on broader language policy (Beacroft, 2017; Lo Bianco, 1990; McNamara, 2009; Mowbray, 2012; Ozolins, 1991). This paper focuses specifically on criminal legal systems and the ways that the operation of criminal laws, courtroom procedure, legal discourse and institutional practice reinforce borders that aid in the criminalisation of the linguistic ‘Other’. This is pertinent given the growing acknowledgement of the role of language ‘barriers’ as key contributors to miscarriages of justice (Tulich et al., 2017; Roach, 2015; MacFarlane et al., 2019). It is suggested here that such ‘barriers’ are less a function of the individual language practices of minoritised applicants, and more a result of a systemically imposed linguistic ‘order’ rigidly adhered to by the State and its representatives.

Language, ‘Australianness’ and the Criminal Legal System

Around 21% of the Australian population primarily speaks a language other than English at home. Since 2011, English monolingualism has decreased from 77% to 73% and around 12% of the population has reported speaking English either not well or not at all (McDonald et al., 2019). However, the reality of widespread linguistic diversity at the community level in Australia coexists with political and ideological beliefs, as well as institutional practices, that imagine Australia as a white, anglophone possession (Moreton-Robinson, 2015; Piller et al., 2021). This should not be surprising given the colonial foundations upon which the contemporary nation-state of Australia was built, which sought to erase the existence of First Nations peoples, cultures and languages while claiming British sovereignty and ownership of the land under the legal fiction of terra nullius (‘land belonging to no one’) (Moreton-Robinson, 2015; Piller et al., 2021). Prior to the invasion in 1788, over 250 Indigenous languages were spoken, along with hundreds more dialectical varieties (Marmion et al., 2014). This has been substantially reduced and local languages are now considered critically endangered (Marmion et al., 2014).

Although Australia does not have a formally enshrined ‘Official’ language, English has become its de facto ‘national’ language largely as a function of colonial governmentality (Bell, 2003; Walsh and Yallop, 1993; Lo Bianco, 1990). Language ‘policies’ in Australia, while not expressly labelled as such, have typically been a by-product of settler-colonial violence. State practices such as the forced separation of Aboriginal and Torres Strait Islander children from their families, internment into protectionist reserves and forced integration have all had the cumulative impact of language oppression (Lo Bianco, 1990). Dulingbara and Yagara linguist, Jeanie Bell (2003), reflects on these Government efforts:

They were trying to de-culturalise the Murri people. They brought them from all over the state and people were forced to speak English and forget their traditional languages and culture. They were also being heavily pushed into the whole concept of assimilation and integration, of being more like white Australians (p 173).

Along with colonial governmentality, language assessments have historically enacted a kind of border-making in defining welcome and unwelcome immigration in post-federation Australia (Khan, 2021; McNamara, 2009). The White Australia policy is perhaps the clearest example of this enacted through the Immigration Restriction Act 1901. Language tests were used primarily as a means of filtering out ‘unwelcome’ people. These tests were administered selectively by immigration officials and were only made available in prescribed European languages. Section 3(a) of the Immigration Restriction Act 1901 stipulates that a person be denied entry if they failed to ‘write out and sign in the presence of the officer a passage of 50 words in length in a European language directed by the officers.’ These passages were often linguistically complex, and the selection of language was expressly aimed at heightening the odds of failure for those deemed unwelcome by immigration officials and politicians (Kendall, 2008; McNamara, 2009). As such, ‘language’ and language assessments have historically served as a useful tool for racial exclusion (Ndhlovu, 2008 2014; McNamara, 2009).

Since the 1970's there has been growing recognition of the need to better accommodate people from language-minoritised backgrounds during interactions with State institutions. This has come as a part of the broader political shift away from overt assimilationism and towards liberal multiculturalism. This general shift has underscored the increased provision and government funding of professional interpreting and translation services (Ozolins, 1991; Hlavac et al., 2018). For instance, 1973 saw the introduction of the country's first National Translating and Interpreting Service, while in 1977 the National Accreditation Authority for Translators and Interpreters was established to help professionalise the language services being provided. It was not until 2000, however, that Australia saw the introduction of its first (and still only) two Government supported Aboriginal interpreter services – the Northern Territory Aboriginal Interpreter Services and Western Australia's Kimberley Interpreting Services (now named Aboriginal Interpreting Western Australia). This has undoubtedly improved access for language-minoritised people and is aided by the fact that professional interpreting support during the criminal legal process is typically paid for by the State, and not by individuals who require it.

Yet, there remain significant problems in how this ideological and practical shift towards linguistic accommodation has actually translated into institutional practice. This is especially true in relation to how linguistic difference and inequality are responded to in the criminal legal system. Multiple reviews have found that there has been, and still remains, a systemic under-availability and underuse of language services within policing, courtroom and correctional contexts (Australian Law Reform Commission, 1992; Dobinson and Chiu, 2005; Australian Law Reform Commission, 2017; Johnston, 1991; MacFarlane et al., 2019). In some circumstances, this has created conditions for substantial miscarriages of justice to occur, such as in the 2015 case of young Indigenous man Gene Gibson who was denied access to an interpreter by police during multiple police interviews despite his primary language being Pintupi. These interviews resulted in false confessions being made by Gibson who had not understood his legal rights, or the questions being posed as they were communicated to him in English. In this circumstance, police wielded the symbolic power to act as linguistic gatekeepers in effectively imposing English monolingualism on a largely non-English speaker. Because Gibson appeared to speak some very basic English, officers had concluded that he did not ‘need’ an interpreter to navigate the complexities of a police interview ² (Corruption and Crime Commission, 2015). This practical and symbolic imposition suggests that even micro-level institutional responses to otherwise clear linguistic inequality can be underscored by an adherence to English monolingual ideologies (Eades, 2012). In this regards, the ‘legitimate’ language of the State can implicitly (and perhaps overtly) govern how language-minoritised witnesses and accused people are treated during interactions within the criminal legal system.

Language, Race and ‘Neutral’ Spaces

As Bourdieu (1992: p 45) has suggested, the political establishment of a ‘legitimate’ language is accompanied by a push for universal recognition as the ‘theoretical norm against which all linguistic practices are measured’. It is within State institutions that such adherence is frequently reinforced:

In order for one mode of expression among others (a particular language in the case of bilingualism, a particular use of language in a society divided by classes) to impose itself as the only legitimate one, the linguistic market has to be unified… Integration into a single ‘linguistic community’, which is the product of political domination that is endlessly reproduced by institutions capable of imposing universal recognition of the dominant language, is the condition for the establishment of relations of linguistic domination.

The seeming ‘impersonality’ and ‘anonymity’ of the legitimate language makes it an indispensable dimension in the making of the nation where a unified language community is co-constructed with national identity (Bourdieu, 1992: p 48; Hesse, 1997). This attempt at unification is premised upon language ideologies that treat languages as named, bounded and standardised categories (Gal, 2006; Flores, 2013). Such language ideologies are powerful in helping legitimise an idealised ‘norm’ against which the linguistic ‘Other’ is judged (Cho, 2021). This can also mean that monolingualism in the national language is positioned as the ‘expectation for the ideal national subject’ (Flores, 2013: p 268). As Ellis et al. (2010: p 440) have argued, an ideal model of Australian society has long been constructed as ‘monolingual, monoethnic… and monoideological’ (see also Cho, 2021). The implication is that linguistic heterogeneity, especially within official settings, is viewed as ‘different, aberrant and problematic’ (Ellis et al., 2010: p 440).

Despite the political and ideological nature of a ‘national’ language, the power of successfully institutionalising language norms lies in establishing a mirage of linguistic neutrality and symbolic equality. As May (2012: p 111) has suggested:

The hegemonic construction of the nation-state is far less readily apparent than more ‘overt’ ethnonationalisms. Cloaked as it is in the apparently neutral representation of a modern ‘national’ language and culture, the legitimisation and valorisation of the dominant ethnie's habitus often escapes notice or critical comment

The valorisation of a ‘neutral’ national language is underscored by political claims that this requisite language impacts upon everyone equally and thus creates the terms in which all are required to meet in order to fully participate in the social, political and economic life of the nation-state (Sung-Yul Park and Wee, 2012). The ‘national’ language (in Australia's case – English) becomes the uniform expectation for all speakers regardless of one's nation of origin or cultural background (Sung-Yul Park and Wee, 2012). To this end, it is seen as operating ‘neutrally’ or transcending race, ethnicity and national origin, thus creating an illusion of ‘non-discrimination’ and symbolic equality (Ellis et al., 2010). The universal recognition of a ‘legitimate’ language also means that it becomes a matter of personal responsibility for meeting certain standards of proficiency (Flores, 2020; Lippi-Green, 1994 1997). The responsibilisation of individuals in terms of ‘proficiency’ is particularly evident in considering the ties between language, the economy, social mobility and the neoliberal subject (Kubota, 2011; Flores, 2020). The kind of rugged individualism that underpins neoliberal ideology also means that one's position on the social, political and economic hierarchy is a matter of individual duty in either reaching ‘acceptable’ standards of competence or failing to do so and thus failing to improve one's socio-economic position. In this regards, colonial languages generally, and English specifically, have often been accompanied by political discourses espousing their emancipatory, modernising economic benefits. This, in turn, helps to mask the racialised and class-based stratification that such linguistic imposition (and coloniality) produces (Tupas, 2019; Motha, 2014). It is perhaps unsurprising that in at least some of the cases below, those targeted by the criminal legal system were not only linguistically and racially subordinated, but economically marginalised also. Yet, the realities of this stratification are discursively erased when notions of language ‘neutrality’, personal responsibility and formal equality before the law intersect to deny that particular criminal law, courtroom proceedings and institutional practice operate to disadvantage particular people and communities.

Frantz Fanon (1967) noted that hegemonic colonial languages, as associated with a ‘mother country's cultural standards’ (Fanon, 1967: p 9) wield symbolic power as the ‘language of the civilising nation’. Fanon spoke of the psychic effects this can have (in relation to French in the Antilles):

Yes I must take great pains with my speech, because I shall be more or less judged by it. With great contempt they will say of me ‘He doesn’t even know how to speak French’ (Fanon, 1967: p 20)

Far from being purely a linguistic matter, Fanon saw this as bound to processes of racialisation (p 8) where institutionally accepted language norms premised on colonial European languages are intrinsically tied to whiteness, with colonised peoples being judged as ‘proportionally whiter – that is closer to being a real human being – in direct ratio to mastery of the French language’ (Fanon, 1967: p 8). As Nirmal Puwar (2001) has similarly argued, institutionalised linguistic norms operate as another form of racial governmentality (p 109) in helping police and mark the language practices of racialised people and communities.

The seemingly impersonal, neutral construction of a ‘legitimate’ language is effective in obscuring the inequalities that arise in how people access public institutions and are subsequently treated within them. For Hill (1998), those who wield institutional power are often gatekeepers in defining and regulating the language practices of those entering into official spaces. Such gatekeepers include court officials (and one can also say police) with the power to control the terms on which one must engage with the formalities of the law. The State language helps to dictate a ‘highly codified set of relations’ (Urciuoli, 2013) often ensuring that official settings associated with the criminal legal system remain largely white, English-only spaces that subordinate and punish the linguistic and racial ‘Other’ (Cho, 2021). Another form of linguistic gatekeeping occurs when language-related rights are contingent upon official narratives of a language ‘deficit’. Perhaps the clearest example is in the legislated right to an interpreter for a police interview or a court proceeding. The determination of such a right relies upon a perceived inability to communicate adequately in English. This is a decision often left to the discretion of police themselves (Wakefield et al., 2015) and also judges (Eades, 2010). This means that the performance of language minoritised witnesses and accused people must be policed and assessed in order to decide whether there is a legitimate claim to the ‘right’ to interpretation. As will be discussed below, these informal ad hoc language assessments can also lead to questions about the credibility and believability of language-minoritised witnesses who engage in multilingual language practices in courtroom settings (see also Eades, 2012; Angermeyer, 2014).

The construct of a ‘neutral’ national language assumed to impact everyone equally, intersects with legal discourses espousing formal equality before the law. As Critical Race scholars have long argued, liberal discourses depicting the ‘neutrality’ or ‘colour blindness’ of the law often work to deny justice for Black people (Bell Jr, 1980; Bonilla-Silva, 2006) and First Nations people (Behrendt, 2003; Bond et al., 2020). Unequally distributed racial power, rather than being aberrational, is systemically embedded to the point of being invisible to those who benefit from it (Crenshaw et al., 1995; Peller, 1995). For Ladson-Billings (1998), racism is a normal dimension of society and its institutions (p 11) to the point that it is rarely even acknowledged and often actively denied (Delgado and Stefancic, 2017, 2016; Lentin, 2018). As Larissa Behrendt (2003) has argued, the myth of formal equality before the law has helped institutionalise a kind of denialism about racism, which reflects another form of racial violence that ‘sidelines race as both historical phenomenon and experienced by racialised people’ (Lentin, 2018: p 3).

Language has increasingly been viewed as another intersection through which racially minoritised people and communities experience exclusion and oppression (Crenshaw, 1990; Perea, 1992, 1989; Matsuda, 1997; Matsuda, 1991). ‘One-nation, One-language’ ideologies have been especially powerful in reinforcing linguistic and racial borders defining ‘welcome’ and ‘unwelcome’ people (Essed, 1991; Essed and Trienekens, 2008; Khan, 2021; Piller et al., 2021; Matsuda, 1997; Pérez Huber, 2011; Yosso, 2005). As Matsuda (1997) has argued, for example, public visibility of minoritised languages heightens the anxieties of white politicians and a white populace who believe they are becoming ‘aliens’ in spaces they are accustomed to commanding. Subsequent moves to control linguistic space (e.g., through the symbolic enactment of ‘English-only’ rules) can, therefore, intersect with efforts to maintain racial hierarchies that privilege white, monolingual English speakers (Cho, 2021; Matsuda, 1997). Elsewhere, institutional contexts such as the school (Ladson-Billings and Tate, 2006; Pérez Huber, 2011; Solorzano, 2019) and the workplace (Matsuda, 1991; Perea, 1992 1989) have most often been the focus in understanding intersections between linguistic and racial categories and the efforts made to suppress the hearing and speaking of minoritised languages within public and official spaces.

In contexts more closely aligned with the criminal legal system, Delgado and Stefancic (2016) have argued that language can be central to the discriminatory and sometimes violent treatment of minoritised people by police. They analyse a case involving Alabama police officer Eric Parker who used force to detain elderly Indian man Sureshbhai Patel. A neighbourhood resident had called the police believing Patel, who was visiting family, to be suspicious. Patel had not immediately complied with Parker's orders (given in English) but had attempted to tell officers that he spoke ‘no English’ in response to Parker's questions and demands. The force used against Patel resulted in his hospitalisation, but in dismissing a civil rights lawsuit against Parker, the court effectively held Patel responsible for having failed to have learnt English to the point of understanding the ‘simple’ demands of police. For the court, whatever language barrier existed between Parker and Patel was blamed on the latter and as such the ruling was akin to an official ‘English-only’ finding where it is a language-minoritised person who bears the responsibility for reaching the linguistic demands of the State and its representatives (Delgado and Stefancic, 2016). The court also expressly warned prosecutors against mentioning race as a part of the courtroom discussion. Judge Haikala told prosecutors: ‘I said to you at the first trial, and I don’t think I said it explicitly at this one, but I did say that I did not want there to be racial issues in this trial’ (Stephens, 2016). This is tantamount to rendering race and racism invisible within courtroom discourse, while simultaneously responsibilising language-minoritised people for the harm inflicted upon them.

Shifting Responsibility and How to be Equal

The following case study illustrates how the status of an idealised, ‘neutral’ national language underpins a ‘race neutral’ understanding of the law and its associated linguistic norms. The need for universal recognition of the legitimate language also means that any disadvantage one faces is treated as illustrative of an individual problem or deficit, rather than a system expressly designed to marginalise language-minoritised people (Cho, 2021). Moreover, while linguistic inequality is tacitly acknowledged and endorsed within judicial discourses, this is not viewed as racialised in effect. The law and the implicit language standards required to enjoy one's legal rights are viewed as operating equally for all. Within judicial discourses, therefore, ‘race’ no longer matters when ‘language’ is the central consideration for defining equal status. In doing so, however, both linguistic and racial discrimination are further entrenched within ‘equality’ discourse and legal outcomes.

The Northern Territory case of Munkara v Bencsevic & Ors [2015] involved a legal challenge arguing that the Territory's Alcohol Protection Order (APO) scheme operated in a racially discriminatory manner against Aboriginal people. Under the scheme, police could issue an APO to someone believed to have committed a qualifying offence ³ while under the influence of alcohol. APO's thus represented another form of disciplinary power beyond immediate arrest for the qualifying offence. Being subject to an APO prohibited someone from entering licensed premises as well as purchasing, possessing and consuming alcohol. A first-time APO restricted this access for 3 months, and any breach of this resulted in lengthier terms of prohibition. Repeated breaches of APOs could lead to incarceration. Most relevant to this article is that a person issued with an APO had 3 days to challenge through a formal written application to a senior police officer. If the officer confirmed the Order, a person had 7 days to bring an appeal to the local court for review. APOs were only available in English, and the application was also required to be made in English.

Tiwi Island man Dennis Munkara was arrested on suspicion of stealing a very small amount of food and drink including a bread roll, some silverside meat and a bottle of orange juice. The amount of this totalled just over $4. Police issued an initial APO on the belief that he was intoxicated at the time of the offence. Munkara was then subjected to repeated APOs when he was believed to have breached those previously issued to him (a qualifying offence). A key claim made by Munkara's lawyers at the appeal was that the APO scheme was discriminatory given that APO's were overwhelmingly issued against Aboriginal people, ⁴ who did not enjoy the right to challenge an Order to the same extent as non-Aboriginal people. It was claimed that the scheme was in breach of s. 10 of the Racial Discrimination Act 1975 (Cth.) which stipulates the right to equality before the law, where a law is said to be in breach:

If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic or origin, or enjoy a right to a more limited extent

Central to the appeal was the role of language in potentially inhibiting one's enjoyment of the right to challenge an APO. It was argued that the written orders being available only in English, combined with the requirement to produce a formal written application within 3 days meant that many Aboriginal people were effectively barred from challenging in a timely manner because of the linguistic requirements imposed by the APO scheme. This, it was argued, made the laws racially discriminatory in their operation. In response to this claim, the court stated that:

It is the experience of this Court that a greater number of Indigenous people in the Northern Territory have significant difficulties with the English language than non-Indigenous people. However, it is also the experience of this court that some non-Indigenous people, particularly those who do not speak English or have English as a second language and are not well educated, or have a disability have similar difficulties to Indigenous people with using and understanding the English language and also need assistance.

Before going on to find that:

Subsection 9(2) and s11(2) of the Alcohol Protection Orders Act 2013 in their terms and operation do not have a differential or discriminatory impact on Indigenous and non-Indigenous applicants for reconsideration of an officer's decision to make an alcohol protection order and for review of the decision of a senior officer. They too operate uniformly. Any difficulty Indigenous people confront in completing and filing applications for reconsideration and review within the time limit prescribed is due to personal characteristics and not due to a circumstance which is dictated by their race.

This narrative constructs what Derrick Bell Jr (1991) has described as an artificial parity between various groups in order to deny that criminal laws can operate in a racially discriminatory manner. Despite the court having acknowledged that APOs were overwhelmingly targeted at Aboriginal people in the Northern Territory, this ‘parity’ became a useful means of overlooking or downplaying this statistical reality. ‘Language’ also becomes central to this mitigation because being linguistically disadvantaged is depicted as an equally shared experience for some non-Indigenous people also (as well as people who not are not ‘well-educated’, have a disability, etc.). There is, therefore, tacit acceptance that the law does work unequally, but this is neither racialised nor structurally embedded. Rather, it is the ‘personal characteristics’ of the individual that shape how, and to what extent, they might capitalise on the right to challenge an APO through official means. This leaves unquestioned the exclusive legitimacy of English as the language through which rights may be enjoyed and aids in masking or denying the realities of racialised differentiation in the law's operation and effect (Matsuda, 1991; Macedo et al., 2015; Grimmer, 2018; Cho, 2021). The ‘neutral’ legitimate language of the State (which creates an equal benchmark to which all must aspire) is seen here as transcending categories like those contained in the Racial Discrimination Act (i.e., race, national origin, colour, ethnicity) (Sung-Yul Park and Wee, 2012). Yet such a view ignores the way that ‘language’ categories and assessment have long served as a means through which racial exclusion has been enacted in this place (Khan, 2021; Piller et al., 2021; Ndhlovu, 2008, 2014; Goldberg, 2016). Moreover, while language and race were key focuses within this case, it is clear that the language of ‘personal characteristics’, as well as legal and linguistic ‘neutrality’, works to aid in the criminalisation of poverty. In effect, Munkara was punished not simply for stealing $4.20 worth of food and drink but also for having limited access to legal and linguistic support through which to challenge the merits of his APOs. As such, intersecting forms of oppression are both compounded but largely ignored within legal discourses espousing the ‘neutral’ operation of the criminal law.

This narrative of personal responsibility and equally shared disadvantage was reinforced by earlier judicial precedent (cited and followed by the court in Munkara) in the immigration case of Sahak v The Minister for Immigration [2002]. In this case, the court considered whether applicants from language-minoritised backgrounds (in this case – Afghan and Syrian) enjoyed the right to challenge a Refugee Review Tribunal decision to a more limited extent than others, and whether this constitutes racial discrimination. The applicants claimed that their being held in immigration detention, the limited access to interpreter services, and a lack of knowledge about what was required, meant they enjoyed the right to challenge within the 28-day time frame to a more limited extent than those who did not face such barriers. This, it was claimed, made the law racially discriminatory in its effect. The court disagreed on the basis that:

The Act does not deprive persons of one race of a right that is enjoyed by another race, nor does it provide for differential operation, depending on the race, colour or national or ethnic origin of the relevant applicant. For example, persons whose national origin is Afghani or Syrian are able to take advantage of the relevant right if their comprehension of the English language is sufficient, or if they have access to friends or professional interpreters so as to overcome the language barrier. There may be persons of another race whose first language is English, but who are inhibited in their enjoyment of the relevant right by reason of illiteracy or some physical infirmity or other impediment. Any differential effect which the application of s478 of the Act produces is not based on race, colour, descent or national or ethnic origin, but rather on the individual personal circumstances of each applicant.

The enjoyment of rights is again discursively bound to the comprehension of English, or simply one's ability to access support (including interpreters) to assist – assumed to be a straightforward task while in immigration detention, with little access to legal representation and minimal financial scope to afford professional interpreting support. As in Munkara, ‘race’ is easily sidestepped when particular language requirements enter the discussion. Because English represents the taken-for-granted benchmark through which legal recourse is accessible, it is again conceptualised as transcending ‘race’, among other predefined and ‘fixed’ categories. In this way, a form of ‘colourblind’ ideology is reified through notions of legal and linguistic ‘neutrality’.

Indeed, the court would go on to reaffirm the language of ‘personal characteristics’ as being the ultimate determinant in whether someone enjoys the right to apply for review fully. In doing so, the court drew comparisons to other potential applicants in order to reiterate the ‘equality’ that underpins the law's operation:

The fact that an applicant who wishes to review the decision of a tribunal requires the services of an interpreter in order to prepare and file an application for review does not mean that the right to apply for review is lessened. Similarly, a person who speaks English but who does not understand how to complete the application due to circumstances, such as physical infirmity, a lack of literacy or a lack of education, does not have his or her right to apply for review lessened by the time limit in s478 compared to the right of a literate, educated, healthy, English-speaking applicant. Any difficulty such persons confront in completing and filing applications for review within the time limit prescribed…is due to personal characteristics and not due to a circumstance which is dictated by their race, colour, or national or ethnic origin.

Like Munkara, there is an effort to define equally shared disadvantage between particular populations (the physically infirmed, the illiterate, the uneducated) in order to demonstrate the non-racially discriminatory operation and effect of the law. As linguistic proficiency becomes the measure of one's right and capacity to challenge, ‘race’ no longer matters as a central factor within this reasoning. It is notable that, unlike in Munkara, the court attempted to draw a comparison with a hypothetical figure that may be less likely to face the same kinds of barriers, namely a ‘literate, educated, healthy English-speaking applicant’. In drawing this theoretical comparison, the notion of formal equality is reaffirmed and the right of review is deemed available to all if they are able to take advantage of it. This again reflects a formalist legal logic that engages in the kind of artificial parity described by Bell Jr (1991: p 369) that is divorced from the social realities and historical legacies of racial and linguistic erasure that have underpinned the making of Australia. This abstract notion of ‘equality’ thus constitutes a wilful and active ignorance about the nature and extent of intersecting forms of oppression and inequality (Medina, 2013a 2013b).

Although narratives around the law's racial ‘neutrality’ are enacted when language categories become a primary point of concern, courts may be more willing to acknowledge discriminatory treatment when individual State actors are responsible. Specifically, the actions of police during interviews may more readily be viewed as linguistically and racially discriminatory when they substantively disadvantage a language-minoritised interviewee. In the Victorian case of DPP v Natale [2018], an elderly Italian man was denied access to an interpreter during key suspect interviews despite being highly proficient in Italian and a partial speaker of English. It was argued on appeal that this denial was tantamount to discrimination and meant that Natale had not enjoyed the full protection of the law in ensuring the investigation was fairly conducted. Importantly, this was considered in relation to the International Covenant on Civil and Political Rights 1976, to which Australia is a signatory, which specifically includes language as another category upon which discrimination occurs. Moreover, the court acknowledged the intersections between one's linguistic background and their nation of origin and thus found that the denial of interpretation in this case was tantamount to national origin discrimination:

The failure by police to arrange an interpreter for the accused and delay the questioning until one was available was an obvious case of (indirect) language discrimination contrary to Article 26 of the ICCPR. Because language is an incident of race (as that concept is understood) and national origin (the accused is an Italian immigrant), it was discriminatory on those grounds as well. Police interrogated the accused to his disadvantage in English, which he could not sufficiently understand because his natural language was Italian, and he was not sufficiently proficient for the purpose in English (p 35).

The court also reinforced that the denial of interpretation was also in contravention of the Equal Opportunity Act 2010 (Vic), which similarly defines ‘race’ according to (in part) nationality or national origin and ethnicity or ethnic origin (s 4(1)). The court reaffirmed that in not granting interpreter access, police had effectively discriminated against Natale on the basis of a ‘natural attribute’ (being an Italian speaker) tied to his national origin. There are many important critiques to be made about assuming language to be a ‘natural attribute’ associated with race (Flores and Rosa, 2015; Rosa, 2019; Rosa and Flores, 2017), yet for legal purposes, such attribution can also become a necessary component in establishing (in)direct forms of racial discrimination.

It is also notable that the court in Natale made no reference to other ‘disadvantaged’ groups in its reasoning. It simply reiterated that the treatment of Natale was discriminatory on the basis of his Italian heritage. This is in contrast to the discourse presented in Munkara and the earlier case of Sahak, where other ‘disadvantaged’ populations were acknowledged in order to construct a narrative of non-discrimination, at least on the basis of race. This is perhaps indicative of a distinction between the cases, where the court in Natale was considering the individual actions of police in denying the right to interpretation, while the court in Munkara (and Sahak) was considering the operation of the law itself. Although the specific actions of police in denying interpreter access were seen as discriminatory, the laws under discussion in Munkara and Sahak were not viewed in the same way.

This suggests an individualised understanding of how racial discrimination is perpetuated where laws are seen as racially ‘neutral’ in their operation, but interpersonal interaction, and the decisions and actions of individual actors might more readily be acknowledged as discriminatory. In the case of interpreter provision, however, it is again worth acknowledging that the law typically grants police the power to decide whether or not to make such an allowance. That is, the ‘right’ to interpretation for language minoritised interviewees is often reliant upon the discretionary power of police (Eades, 2010). In Victoria, where Natale's case was heard, interpreter access in the course of a police interview is aligned with perceptions of English proficiency. That is, one may be provided access to interpretation in circumstances where it is believed they lack the English proficiency required to navigate the complexities of a police interview. Not only is this rarely assessed in any kind of systematic way (Wakefield et al., 2015) but also creates the conditions for linguistic vulnerability to be exploited by interviewers. As such, it cannot be said that it is solely the individual choices of police that reinforce vulnerability, but the way these decisions are legitimated by the law itself and the way that the ‘right’ to interpretation is conceptualised in Australia.

These conditions of linguistic power and vulnerability can have very practical outcomes, including the subsequent arrest and charging of language-minoritised people. The case of Queensland Police Service v Innocent Ntakarutimana [2012] involved an appeal by the Queensland Police Service against a Magistrate's finding that the accused had no case to answer. This original ruling was made largely on the basis that the accused had not understood the instructions given to him by police. The applicant had been stopped by police and issued scripted instructions to undertake a breath test in these terms:

I require a specimen of breath for a breath test. This is a breath testing device. To comply with my requirement, I now direct you to place your mouth over the mouthpiece of the device and blow directly and continuously through the mouthpiece until I tell you to stop, so one continuous breath until I tell you to stop.

Ntakarutimana did not follow these instructions correctly and claimed repeatedly that he did not understand what was required of him because he did not understand English. Officers then informed Ntakarutimana that if he failed to comply, he would be detained at the local police station in order to give the requisite sample. After further failed attempts to receive a breath sample, officers informed Ntakarutimana that he was being formally detained and instructed him to exit his vehicle. Ntakarutimana did not immediately comply, was forcefully dragged from his vehicle and was then arrested for obstructing a police officer. At the police station, the same scripted instructions were given to Ntakarutimana in English without an interpreter and after he became agitated, no further attempts were made to obtain a breath sample. Ntakarutimana was taken to the local watch house and officially charged with obstructing police.

An initial successful application against was made by Ntakarutimana that he had no case to answer regarding the failure to supply a breath sample. The original appeal court acknowledged that the manner in which instructions were communicated by police was inadequate to ensure full understanding. The Magistrate also found Ntakarutimana innocent of the charge of obstructing police; however, both rulings were overturned on appeal. In the appeal regarding the ‘failure to supply’ charge, it was ruled that:

It is clear and inescapable (factually) that the respondent did fail to provide a specimen of breath, both at the roadside (for Constable Radovanvic) and at the police station (for Sergeant Phillips). Whether or not the respondent understood the requisitions administered to him was irrelevant.

Understanding police instructions as given in English becomes ‘irrelevant’ if, as a matter of fact, the applicant had failed to follow these instructions. It is demonstrative of how such reasoning can be almost entirely divorced from social and interactional circumstances where someone not highly proficient in the legitimate language may experience greater difficulty in understanding scripted police instructions. This subsequently means that it is they who come to bear the responsibility (and consequences) for any misunderstanding that arises (Delgado and Stefancic, 2016). Although not a case that directly addressed claims of racial discrimination, there are clearly racialised effects present that cannot be easily obscured through an exclusive emphasis on ‘language’. This was exacerbated when the appellate court overturned the ‘not guilty’ verdict made in the original hearing in relation to the charge of obstructing police. In doing so, the court again disregarded the relevance of (mis)understanding by finding that the obstruction did not need to be wilful or deliberate on Ntakarutimana's part, but simply that it had occurred, regardless of reason, as a matter of fact. ⁵ This selective ignoring of context helps reaffirm the racialised impacts of structurally embedded linguistic inequality and continues to shift the responsibility for understanding onto a language-minoritised applicant who must then endure the consequence. In this way, legal formalism and precedent help contribute, directly and indirectly, to reifying an ‘English-only’ ideology (Delgado and Stefancic, 2016) where an implicit message is sent that such encounters with police and the facing additional criminal charges might be minimised if one simply learnt to understand English (Delgado and Stefancic, 2016).

The Credible Monolingual and the Courtroom as White Space

At an interactional level, the courtroom as a white space is reaffirmed through the policing of language practices that do not fit within a monolingual norm (Cho, 2021; Carlin, 2016; Rickford and King, 2016). In particular, the expectation of monolingualism in the legitimate language of the State can underscore how racialised witnesses from language-minoritised backgrounds come to have their credibility and believability questioned (Carlin, 2016; Cho, 2021; Angermeyer, 2014 2015; Rickford and King, 2016; Eades, 2012). The Victorian case of Tsang v DPP [2011] illustrated how prosecutors might seek to compel a jury to disbelieve a defendant partly on the basis of their linguistic performance. Tsang was accused by the prosecution of ‘hiding behind his interpreter’ because during cross-examination he sometimes responded to questions in English and other times in Vietnamese. This was used to cast doubt on his credibility as a witness:

You shouldn’t believe him… and you observed over a number of days his demeanour and behaviour in court.

He's hiding behind the interpreter, although on occasions you could tell he understood the questions I was asking. His generally evasive responses to questions, you should not believe him.

Another reason you should reject [the applicant's] evidence, and that is just the way he gave evidence, prevaricating, dissembling, evasive, I don’t need to go through the evidence he gave. I took three days in cross-examination, but you saw him, you’ve got the best seats in the house, you saw him over there, and you saw him squirm and hide behind his interpreter, you might think, and on occasions it was quite clear he understood the questions in English that I was asking him.

Sometimes he replied directly to the questions in English that I asked, replied to me directly in English (p 34).

Tsang claimed on appeal that the judge during the original trial should have instructed the jury to disregard the comments of the prosecution – a claim which proved unsuccessful. The appeal court ruled that it is legitimate for a jury to assess the extent to which the ‘selective’ use of an interpreter was being abused for tactical advantage. The implication is that if Tsang had acted ‘monolingually’, he may have been viewed more favourably. The court specifically pointed out that the jury would have noticed that ‘the accused could speak English well’ (p 38), implying that Tsang's avoidance of English-only communication might legitimate doubts about his trustworthiness as a witness. The particular emphasis on Tsang's English-speaking ability indirectly frames his desire to also communicate via a Vietnamese interpreter as potentially undermining his credibility. This reaffirms notions about how a good witness can and should speak and also illustrates the limited promise of ‘rights’ discourses which are fundamentally premised on the white, English monolingual ‘norm’. On this point, the appellate court made sure to note that:

the issue is not whether the accused was entitled to an interpreter. An accused whose first language is not English has a right to an interpreter paid for by the State. This is an important right and is critical to ensuring a fair trial…Rather, the issue is whether, accepting the accused's right to use an interpreter, the jury was entitled (in assessing credibility) to take into account his alleged abuse of the use of the interpreter. In our opinion it was (p 36).

In speaking of possible ‘abuse’ in using an interpreter, it was stated that:

In this case, the assessment of whether this has occurred was inextricably related to Tsang's credit. The assessment of whether a witness is telling the truth is exclusively a matter for the jury… Many factors affect this assessment. Relevantly, one of them is the manner in which a witness gives evidence. His or her responses, delays, mannerisms, prevarications are all relevant, as is the manner and extent of use (and possible abuse) of an interpreter, particularly where an accused elects to use the interpreter selectively. In our opinion, it is this suggested abuse that is a proper matter for the jury (p 36).

Although the ‘right’ to an interpreter might be viewed as valuable to procedural fairness in theoretical terms, those seeking to make use of this right remain subject to credibility assessments if an interpreter is not engaged in a way deemed suitable by a courtroom audience. The ‘right’ to interpretation is thus intrinsically bound to an English monolingual mindset (Cho, 2021; Clyne, 2008) that can directly impact upon how a language-minoritised witness is perceived (Carlin, 2016; Cho, 2021). This policing of linguistic performance is, implicitly or explicitly, racialised (Matsuda, 1997 1991; Hill, 1998; Flores and Rosa, 2015; Rosa, 2019; Carlin, 2016) and reaffirms institutional settings associated with the criminal legal system as white spaces designed to subordinate and punish minoritised people deemed ‘unwelcome’ (Rickford and King, 2016; Carlin, 2016), and risks creating a kind of testimonial injustice (Fricker, 2007) where particular voices and ways of speaking are afforded more credibility than others.

The symbolic imposition of English monolingualism is also reasserted through the construction of ‘professional’ spaces where lawyers, judges and prosecutors define the conditions under which language-minoritised people must participate in their own legal matter. In the Victorian case of Mayen v Ryan (2014), a South Sudanese woman who primarily spoke a variety of Dinka was denied access to any form of interpretation after her own lawyer had informed the court that, in his view, such access was unnecessary. The following exchange took place between Mayen's lawyer and the judge:

HER HONOUR: There is an issue raised on the bench sheet from the last occasion about whether a Dinka interpreter was required.

MR LIDDY (Mayen's representative): No your Honour, we can deal with this today. I’ve had extensive discussions with Ms. Mayen. If your Honour is of a view that there may be a problem from your perspective, I understand that a linguist ⁶ has been booked for 12 o’clock. But if we proceed as I think we can, that’ll be stood down.

HER HONOUR: Mr Liddy, if you’re comfortable and you’ve had an opportunity to speak –

MR LIDDY: I’m quite comfortable your Honour.

HER HONOUR: — then I’m happy to progress (p 6).

It is instructive how such decisions about the granting of a right to interpretation can be premised upon the beliefs of those who already wield institutional and linguistic power within ‘professional’ spaces, whilst the central party in a legal matter is effectively rendered silent. To this end, linguistic presence and participation are tied to the comfort of legal representatives and judges who determine the linguistic order of proceedings. This reflects another kind of border-making between those ‘qualified to participate in the game’, and those who are excluded by particular linguistic conditions that are ‘presumed by entry into this social space’ (Bourdieu, 1987: p 828).

Conclusion

This article sought to illustrate the ways that institutional and judicial discourses and practices help reinforce a kind of ‘English-only’ justice that risks excluding language-minoritised people from seeking and attaining effective legal recourse. Moreover, this raises questions about who is considered legitimately ‘equal’ before the law, and who (and who is not) a subject of rights. To this end, then tacit acceptance of linguistic discrimination through the enactment of ‘equality’ discourses helps perpetuate the notion that, when it comes to language, some are more equal than others. Moreover, this is used to effectively mask the racialised impacts of this exclusion, whereby ‘race’ is sidelined as a meaningful consideration when ‘language’ is the primary lens for adjudging one's status before the law. In part, this is because ‘race’, as conceptualised under the Racial Discrimination Act, is viewed as a ‘fixed’ and immutable category, whereas ‘language’ is something that one can, and should, change in order to be ‘equal’. This means that linguistic subordination is framed as a matter of personal responsibility, with the implication being that the enjoyment of rights is implicitly contingent upon one's proficiency in the dominant language of the State. Moreover, the creation of a kind of ‘artificial parity’ is necessary to ensure that the racialised impacts of linguistic exclusion are denied. To this end, within judicial discourse and precedent, it is necessary to construct a kind of ‘shared inequality’ that particular groups experience on the basis of language, to effectively ignore that such disadvantage is racialised and racist. This helps to maintain the illusion that laws operate ‘neutrally’ when it comes to race, even if they do anything but in regards to language.

At an interactional level, racialised gatekeeping can also occur in how linguistic performance is policed and assessed within a courtroom context. To this end, language minoritised seeking to engage the right to an interpreter can be subject to questioning if they are believed to be ‘abusing’ this right. In essence, the failure to fit a particular English monolingual ‘norm’ or to be seen as not communicating the ‘right’ way can risk leading to negative credibility assessments by jurors, and authorised by judges. This constitutes another kind of linguistic and racialised border-making where minoritised witnesses come to be subject to the perceptions and preferences of those already wielding institutional and linguistic power. Official spaces are maintained as another kind of white space, hostile towards the racialised linguistic ‘Other’, whose language backgrounds are deemed unsuitable for legitimate participation. As such, in a nation that espouses its ‘multicultural’ credentials, the criminal legal system continues to reinforce many of the assimilationist and exclusionary legacies that have proven foundational to Australia.