Multiculturalism and the Law (ISBN 0 642 22653 9) Multiculturalism and Criminal Law: the work of the Law Reform Commission

Multiculturalism and the Law (ISBN 0 642 22653 9) in compilation Australian Institute of Criminology 1995 in text Elizabeth Evatt The contents of this file are copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act 1968 (CWlth), no part of this file may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise), be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquires should be address to the publisher, the Australian Institute of Criminology PO Box 2944, Canberra, ACT 2601). Multiculturalism and Criminal Law: the work of the Law Reform Commission Elizabeth Evatt AO, Member of the Human Rights Committee (UN International Covenant on Civil and Political Rights) Introduction: Multiculturalism Law and diversity: Until recent years Australian law has paid little regard to the customs and laws of the Aboriginal people or to the needs of its migrant communities in relation to the legal system. For many years the predominant policies were those of white Australia and assimilation. Those policies were abandoned in the post-war era; the importance of Aboriginal culture and history is now widely recognised, and multicultural policies have been adopted. These changes have important implications for the legal system, and have led to two separate references to the Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, (ALRC 31 1986) completed in 1986, and Multiculturalism and Law (ALRC 57 1992) completed in 1992. This paper focuses on multiculturalism; it should be emphasised however, that the earlier reference on Aboriginal customary law was a significant influence on the Commission in the later exercise. It established guidelines for considering the impact of law on minority cultures and for implementing reforms which might better accommodate the needs of minorities in a way that is consistent with human rights standards. The Reference: In its reference Multiculturalism and the Law, the Law Reform Commission (1992) was asked to consider whether Australian family law, criminal law and contract law are appropriate for a society made up of people from different cultural backgrounds and from ethnically diverse communities. The Commission's task was to consider whether the law takes adequate account of the cultural diversity of Australian society. Defining multiculturalism: Multiculturalism implies the existence of different cultural communities in one state, and refers to policies and laws designed to recognise this in a positive way. The National Agenda for a Multicultural Australia defines multiculturalism as a policy for "managing the consequences of cultural diversity in the interests of the individual and society as a whole". Multiculturalism is built on the belief that people of

diverse languages, religions and culture should be able to participate on equal terms in a single political entity, and that national unity is compatible with diversity. Legal implications: Among the elements necessary for the success of multicultural policies are these: a legal system which deals justly with a diversity of religions, languages and cultures; general community acceptance of the right of people to be different, to have different opinions, religions and traditions; effective policies to deal with the causes of racial tension (see ICERD article 21). In a society based on justice under the rule of law, legal solutions can help to prevent the growth and expression of intolerance and help to encourage tolerant attitudes. Law has, in that way, a positive role to play in promoting multiculturalism. But it can also be an obstacle to its effective implementation. That is why the reference, and this conference are of such importance. National agenda for a multicultural Australia National agenda: The reference was part of the National Agenda for a Multicultural Australia Multicultural policies include: cultural identity: the right of all Australians, within carefully defined limits to express and share their individual cultural heritage, including their language and religion; social justice: the right of all Australians to equality of treatment and opportunity, and the removal of barriers of race, ethnicity, culture, religion, language, gender or place of birth, and economic efficiency: the need to maintain, develop and utilise effectively the skills and talents of all Australians, regardless of background. (Report pars 1.15, quoting National Agenda, p. vi) Boundaries on multiculturalism: Multicultural policies are based on the premises: that all Australians should have an overriding and unifying commitment to Australia. that all Australians accept the basic structures and principles of Australian society the Constitution and the rule of law, tolerance and equality, parliamentary democracy, freedom of speech and religion, English as the national language and equality of the sexes; Multicultural policies also impose obligations, and in particular the obligation to accept the right of others to express their view and values (IP para; Report para. 1.18; National Agenda p. vi). The Commission accepted the assumptions underlying the multicultural policy as the basis for its work, including the need to establish appropriate limits on the right to cultural enjoyment. (Para 1.18. "In line with these principles the Commission's inquiry is not only about extending the boundaries of the legal system to

give greater recognition to cultural diversity, and to ensure equality of treatment and opportunity. It is also about establishing appropriate limits on the right to cultural freedom.") Multiculturalism and law: the principles Equality and diversity: Multicultural policy objectives include the promotion of: equality before the law by systematically examining the implicitly cultural assumptions of the law and the legal system to identify the manner in which they may unintentionally act to disadvantage certain groups of Australians, and an environment that is tolerant and accepting of cultural and social diversity and respects and protects the associated rights of individuals. (Department of Prime Minister and Cabinet 1989.) Approach to issues: The kind of questions considered by the Commission were whether the law creates barriers to the expression of cultural identity, whether it creates special problems for people with particular beliefs and traditions (Report 1.19; ALRC 31, para 163; P 121, para 164. Report para 1.21; Issues Paper para 7), whether it impedes equal participation in Australian society, and whether the law could play a more positive role in achieving the goals of multiculturalism by promoting effective equality before the law (not just formal equality) (Report, para 1.17). The Commission also looked at the broader issues of whether minority values should be better accommodated by the law. Principles: Important principles which guided the Commission were these: the law should apply equally to all without discrimination; there should not be different rules for different people on the ground that they belong to a particular ethnic group; within the limits necessary in a free and democratic society, each individual should be free to choose, to maintain and express his or her cultural or religious values; the law should take account of a person's individual cultural experience, values and attitudes when it is relevant to do so, is not discriminatory and does not jeopardise the rights of others; equality before the law and equal access to the law require the removal of communication barriers, whether arising from language or from lack of understanding. Criminal law issues: So far as the criminal law is concerned, the subject matter of the reference fell into two broad groups, one concerned with the adjustment of laws to accommodate minority cultural values, and the other with specific barriers to equality before the law. Accommodating cultural diversity The first group of issues dealt with in this paper relate to the accommodation of cultural diversity. The kinds of questions that were asked by the Commission were these:

In what circumstances are a person's personal characteristics or cultural background relevant to criminal liability and punishment? For example, in deciding whether to prosecute (Aboriginal Customary Law ALRC 31 para 475 478; Multiculturalism and Law ALRC 57, para 8.16), or what sentence to impose (Aboriginal Customary Law ALRC 31 paras 491-505 517 533; Multiculturalism and Law, ALRC 57, paras 8.14.16). How, if at all, should substantive criminal law take account of culture? for example should special requirements or exemptions apply to people on the ground of race, ethnic origin or religion? Are new criminal sanctions necessary to deal with conduct, such as racist conduct which has the potential to undermine the goals of multiculturalism (Chapter 7). The Commission proceeded on the basis that, on the whole, the principles underlying the criminal law were generally acceptable. It recommended some changes to the way the criminal law is applied to ensure that different cultural values are accommodated within the overall framework of the law, in light of its role of protecting the whole community, and that procedures be introduced to ensure that cultural issues are taken into account when laws are being drafted(para 8.1). Cultural defence Looking first at the principles of criminal responsibility, the Commission considered whether there are circumstances in which the law should excuse those who have committed an act classified as criminal while acting in accordance with their own cultural values (ALRC 31, paras 447-450. ALRC 57, para 8.10-8.11). The Commission concluded that a general cultural defence was not desirable, especially in cases of death or personal injury (paras 447 450). Defining a formal defence on this basis would leave the law uncertain and could deprive people, such as victims of assault, of the legal protection which is a main purpose of the law. No factors had been advanced which could outweigh the general principle of equality before the law and equal protection of the law. Nor were there any grounds to support the introduction of a partial cultural defence, such as that recommended in the earlier report on Aboriginal Customary Laws (ALRC 57, para 8.12). Under the recommendation a charge of murder would be reduced to that of manslaughter where a member of an Aboriginal community had done the act in question in the well founded belief that the customary laws of an Aboriginal community of which the accused was a member required that the act be done by the accused (ALRC 31, para 453. The onus is on the defendant. See also para 446 specific cultural defence). There was no basis for such a defence for members of other ethnic or cultural groups. Is there a case for exemptions on cultural grounds Leaving to one side mainstream criminal offences against persons or property, some laws impose specific requirements on people to act (or to refrain from acting) in certain ways in order to promote community well-being, health, welfare and safety. In some cases

compliance with these rules and regulations is considered by certain groups to be incompatible with their religious beliefs or traditions. The law already provides for exemptions from complying with certain laws mainly those of a regulatory or mandatory nature on the basis of moral or religious objection or for other reasons. Examples include provision for conscientious objection to military service on religious or other grounds, and the provisions which enable the religious slaughter of animals (ALRC 57, para 8.17. Another example concerns the requirement to wear a motor-cycle crash helmet (WA). The Commission received several submissions seeking particular exemptions from laws which were seen to interfere with cultural or religious freedom (ALRC 57, para 8.18). Examples include: exemptions from the requirement to wear a crash helmet where this would interfere with wearing religious headdress; exemptions from laws prohibiting possession of weapons in public to allow carrying ceremonial knives; The Commission did not recommend any specific exemptions, though it considered that exemptions should be considered in certain situations. It recommended that Parliament should examine in a more systematic way whether such exemptions ought to be included in draft legislation introducing new offences. It would certainly advance access and equity policies to consult with communities to assess the way particular laws may affect them and to take account of those effects in drafting new laws. This might lead to a general adjustment of the draft, or possibly to an exemption. The principle which should be applied to determine when an exemption is justified is that the law should support individual religious and cultural freedom only where the significance to the individual of upholding that right outweighs the harm the law seeks to prevent and where the recognition of that freedom by the law poses no direct threat to the person or property of others. This formula is an attempt to balance the requirement of article 27 of the ICCPR that the law should not deny members of minority communities the right to enjoy culture or to practice religion with other provisions protecting individual rights and freedoms. The Commission took the view that it was preferable for Parliament to provide for specific exemptions, after weighing up the factors, rather than leaving the question to be decided on the basis of 'reasonable excuse' (ALRC 57, para 8.20). [One ground for claiming exemption from the law could be that of religious freedom. The application of this principle can give rise to some interesting cases. For example a Canadian Quaker refused to pay taxes as part of conscientious objection to military expenditure. It was held by the Human Rights Committee that this fell outside the protection of article 18 of the ICCPR ([Comm 446/1991. Report for 1992]).] Should ignorance of the law be a defence in any circumstances? The proposal: It had been suggested to the Commission that there should be a defence available to a person who did not know that the conduct in question was criminal where

that ignorance resulted from a failure of the authorities to provide adequate information. It was suggested that language barriers may impede some people from being aware of certain prohibitions, especially where the conduct is not prohibited in the country of origin. The proposal could seldom be relevant to criminal offences against the person or property. The recommendation: The Commission did not recommend a defence of justifiable ignorance of the law, but proposed instead that ignorance be taken into account in other ways. For example: In sentencing, the Crimes Act 1914 (Cth) should be amended so that the fact that the accused did not know that what he or she did was an offence could be taken into account in deciding what sentence to impose (para 8.25); In exercising the discretion not to record a conviction, the offender's cultural background should be added to the list of factors that a court must consider (para 8.15, 8.27); In making the decision to prosecute, the offender's cultural background should be considered, and the fact that the alleged offender did not know and could not reasonably have been expected to know that what he or she did was an offence (ALRC 57, para 8.16, 8.28. These recommendations would not necessarily be limited to people of ethnic background. Taking cultural factors into account in determining culpability The proposal: The Commission proposed initially that the law should require the court to have regard to the cultural values, beliefs and practices of the accused in determining the intention or state of mind of the accused (ALRC 57, para 8.34. Evidence of the accused's cultural values and if relevant, of traditional practices should be admissible for this purpose. This proposal drew a mixed response. Some expressed the fear that the proposal might encourage racial or cultural stereotyping and could disadvantage women from certain ethnic backgrounds which were seen as particularly oppressive towards women. The recommendation: In the result, the Commission recommended removing obstacles to the introduction of evidence about cultural and ethnic background where that is relevant to a defendant's state of mind. It also recommended that positive action be taken to improve lawyers' awareness of cultural differences and their relevance in order to overcome any tendency towards cultural stereotyping (ALRC 57, para 8.37). These goals would in fact be achieved if the Evidence Bill 1991 (Cth) were implemented (para 8.36). The Bill abolishes the rule that evidence cannot be given about matters of common knowledge; It would make it easier for people to give evidence in a natural way without being tripped up by technicalities; The Bill also makes it easier for expert evidence to be given about cultural norms and values of particular communities where that is relevant. Cultural factors and reasonableness

The proposal: The standard of reasonableness is a concept which, though objective in nature, is nevertheless prone to the intrusion of unstated and perhaps unrecognised monocultural assumptions. This is not just a question of race, language or religion. As we have seen lately, the law is also subject to gender assumptions. What can be done? The Commission found it difficult to suggest a satisfactory way to take account of cultural factors in existing legal tests of reasonable conduct, without opening up the possibility of a proliferation of different standards, to add to those which already arise from the subjective nature of judgement. It seemed preferable that those standards should continue to change in response to changing social conditions, including the impact on Australian society of different cultures and ethnic groups. A better result will be achieved if the standard is encouraged to evolve to reflect the cultural diversity in the Australian community. The Commission considers that the recommendations made in this report as a whole will help to accelerate this process. A greater understanding of cultural diversity among all those involved in the administration of justice is particularly important. Efforts should also be made to ensure that membership of the judiciary, magistracy and the legal profession is not drawn only from a narrow elite as this fosters perceptions of bias when value judgments have to be made (ALRC 57, para 8.38). Obviously, education is part of the answer for both multicultural and gender issues. Racial violence, racial hatred and human rights (ALRC 57 ch 7) Looking more widely at the role of the criminal law in a culturally diverse society, once particular issue was that of racist violence and racial hatred, which can undermine the goals of multiculturalism by adversely affecting the enjoyment of rights and freedoms by members of minority communities. While not as widespread in Australia as in some European countries, racist violence and other racist conduct is frequent and serious enough here to call for a legal response. The Law Reform Commission considered proposals for new federal laws to prohibit or restrain conduct of this kind. International standards: International standards require states to take measures against acts of racist violence, incitement to racist violence and incitement to discrimination hatred or hostility. The ICCPR provides that: any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law (art 20(2)). Under CERD, states are required to: declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities (art 4(a)).

Australia's reservations: When ratifying the ICCPR Australia reserved the right not to introduce further legislative measures in respect of article 20 (see ALRC 57 para 7.5. For a comment on reservations to article 20 see McGoldrick, The Human Rights Committee p.481, and n.16, p.494. The Australian reservation was later substituted by a Declaration, see McGoldrick p.271). When ratifying CERD Australia declared that it was not in a position to treat as offences all matters covered by article 4(a). (Its stated intention was to seek legislation specifically implementing that article. In 1988, Australia announced that it was reconsidering the position: Report of CERD, GAOR 43rd Session (A/43/18) UN NY 1988 para 50). Current concerns: Racist violence and racist hatred have been the subject of concern in recent years both in Australia (Human Rights and Equal Opportunity Commission Report of the National Inquiry into Racist Violence in Australia (NIRV) 1991 and Royal Commission on Aboriginal Deaths in Custody National Report 1991) and overseas (Multiculturalism and Law paras 7.24-7.26. NIRV, 1991. See also Striking a Balance: Hate Speech. Freedom of Expression and Non-discrimination edited by Sandra Coliver, Article 19, International Centre Against Censorship, Human Rights Centre, University of Essex, 1992; David Partlett, "From Red Lion Square to Skokie to the Fatal Shore: Racial Defamation and Freedom of Speech", (1989 (22 Vanderbilt Journal of Transnational Law, no 3, 431.). Specific legislation to deal with racism and racist violence has been introduced in some Australian states (see ALRC 57 paras 7.10-7.16. NIRV pages 286-89) and in overseas countries (there is legislation in New Zealand, Canada and Great Britain). Racial violence is of special concern to the Aboriginal community. The question for the Law Reform Commission in the Multiculturalism reference was whether there should be legislation on these matters which would enable Australia to withdraw its reservations to the ICCPR and CERD. The Human Rights and Equal Opportunity Commission National Inquiry into Racist Violence had made recommendations in this area, and the Royal Commission on Aboriginal Deaths in Custody later made further recommendations. The Government has published a draft Bill for public comment to introduce new law in this area: the Racial Discrimination Legislative Amendment Bill. I will refer to those of its provisions which pick up on the reports. Racist violence: Acts or threats of violence can already be punished as offences under state or territory laws. It could be argued that this is a sufficient response, and that racist motivation could be considered in relation to sentence. The Law Reform Commission concluded, however, that an offence of violence ought to be regarded as more serious in nature if a racist motivation was established, since the harm done by violence of this kind goes beyond the harm done to the individual victim. It extends to all the members of the community to which it is directed and impairs their equal enjoyment of human rights and fundamental freedoms (ALRC 57 para 7.28). Racist violence has a damaging effect on community relations in a multicultural society and there is a responsibility on the Commonwealth to ensure that all Australians are protected, rather than relying on state or territory law. The Commission recommended that a new range of offences of racist violence be created. These would be constituted by the existing offences of violence with the added element of racist motivation. Where a person committed such an offence of violence, with the intent to cause members of an

identifiable group to fear for their safety, the recommended penalty would be one and a half times more than for the underlying offence. If that recommendation were implemented, incitement to commit that offence would also be an offence (para 7.40. See also Attorney-General's Department, Review of Commonwealth Criminal Law (Chairman Sir Harry Gibbs), Fifth Interim Report, AGPS, Canberra, 1991, pp.301-9.ch 18. NIRV p.298). This would effectively implement those parts of ICCPR article 20 and CERD article 4(a) dealing with violence and incitement to racist violence. Racist hatred: freedom of expression: The international standards mentioned earlier require that incitement to racist hatred and discrimination be prohibited or made offences. They also require that states ensure freedom of expression, subject to certain limits. The difficulty is to frame laws directed against racial hatred in such terms that their application does not violate freedom of expression under article 19. If that right is unduly curtailed it may be at the expense of just those individuals who need the protection of free speech and the right to dissent, as members of minority communities (Sadurski "Offending with Impunity: Racial Vilification and Freedom of Speech" (1992) 14 Sydney Law Review 163. See also Striking a Balance: Hate Speech, freedom of Expression and Non-discrimination edited by Sandra Coliver. Article 19, International Centre Against Censorship, Human Rights Centre, University of Essex, 1992; David Partlett, "From Red Lion Square to Skokie to the Fatal Shore: Racial Defamation and Freedom of Speech", (1989) 22 Vanderbilt Journal of Transnational Law, no 3, 431). It will be of little value to outlaw the expression of racist hatred in order to achieve the objects of a multicultural society if the effect is to erode other rights and freedoms. Limits on freedom of expression need special justification on the basis that they are necessary for the effective functioning of a democratic society. Free speech may be confined in a liberal democracy where the value of individual autonomy is enhanced by restraint for example, where individual autonomy may be intimately tied to a person's racial or ethnic identity in society. But only reluctantly, because few restrictions restore the individual autonomy thus forfeited, and only by reference to government's speaker role, supported by the symbolic commitment of legislation and in affording and avenue of speech for defamed racial groups, in the courts. The Human Rights Committee, which deals with cases alleging violation of rights under the Covenant, has taken the view that the prohibition of incitement to racial hatred is mandatory ("For art 20 to become fully effective there ought to be a law making it clear that propaganda and advocacy as described therein are contrary to public policy and providing for an appropriate sanction in case of violation." General comment no. 11, 19th Session, and that it is fully compatible with the right of freedom of expression as contained in article 19, the exercise of which carries with it special duties and responsibilities. As an example, in a case decided by the Committee in 1983, (JWG and WG Party v. Canada, Doc A/38/40 p.231; adopted 6 April 1983) the complainant had used a recorded telephone message to attract members to join his party. The message warned callers "of the dangers of international finance and international Jewry leading the world into wars, unemployment and inflation and the collapse of world values and principles." Use of the telephone service by the complainant was restricted by Canada, applying ss 3 and 13(1) of the Canadian Human Rights Act

1978. The complainant alleged that this was a violation of the right to freedom of expression protected by article 19(I) of the Covenant. The Human Rights Committee did not accept the complaint, (para 8.b page 236) being of the opinion that the opinions which the complainant sought to disseminate through the telephone system clearly constitute the advocacy of racial or religious hatred which Canada has an obligation under article 20(2) of the Covenant to prohibit. In the Committee's opinion, therefore, the communication was, in respect of this claim, incompatible with the provisions of the Covenant. Divided views on race hatred crimes: The Law Reform Commission's view on these issues was that outlawing incitement to racist hatred can be consistent with the permitted limits on freedom of expression, and that it is justified in order to protect the inherent dignity of the person, to indicate a commitment to tolerance, to help prevent the harm caused by the spread of racism and foster harmonious social relations (para 7.44; there was one dissent from this view). However, the majority did not consider that incitement to racist hatred and hostility should be a criminal offence, but that it should be unlawful, and that it should give rise to civil remedies (paras 7.44-4.47). Conciliation, backed up by civil remedies was considered the more appropriate way to deal with the issue (a similar view was taken by the Royal Commission on Aboriginal Deaths in Custody). A minority, however, took the view that to use freedom of expression for the deliberate purpose of inciting people to hate others on the ground of colour, race or religion was an abuse of that right which merited punishment when the publication was likely to have the intended effect. "To offer no more than conciliation in such cases would add to the trauma of the victim" (para 7.48. This view was held by two Commissioners, including the author). Government to make racial vilification a crime: The Government has, in effect picked up both these views. The Bill would create a new offence and also provide for civil remedies: The offence will be constituted by doing a public act that is racially offensive: with the intention of stirring up hatred against a person or a group of persons on the ground of race, colour or national or ethnic origin; or with the intention of causing persons of a particular race, colour or national or ethnic origin to fear that violence may be used against them. Public acts that are likely to stir up hatred, serious contempt, severe ridicule against a person or group of persons on the ground of race, colour or national or ethnic origin are made unlawful under the Racial Discrimination Act. The Commonwealth Attorney- General has announced the Government's intention to make it a crime to incite hatred or ridicule of a person or group on the grounds of race, colour or nationality (Attorney- General's press release 22 July 1992). The offence would include dissemination of ideas based on racial superiority or hatred; (This would implement an aspect of article 4(a) of CERD) publicly inciting others to hate or have contempt for or ridicule a person or group of persons because of their race, colour, nationality, ethnic or national origin; publicly inciting others to hate or have contempt for or ridicule a person or group of persons because of their race, colour, nationality, ethnic or national origin with the intention to inspire the apprehension of fear by the members of any racial group.

Comment: The government's proposal does not appear to address the question of hatred on the ground of religion which is specifically covered in the ICCPR. This is a matter on which the Commission has commented. On the whole, the Bill is a satisfactory implementation of the work of the three agencies mentioned. Removing the offence of blasphemy Blasphemy is a limited offence: The offence of blasphemy is directed against publications which threaten public order by provoking outrage in Christians. In one sense it could be regarded as giving some protection to freedom of religion and thereby supporting multiculturalism. But, in fact, it gives preferential treatment to one religion. Are there grounds for extending blasphemy so that it protects all religions? Removal not extension recommended: The Law Reform Commission recommended that, rather than extending blasphemy, all reference to it in Commonwealth legislation be removed (para 7.59). Arguments supporting this conclusion were that it would be difficult to devise a satisfactory definition of religion for the purpose of extending it and that the result could be an unreasonable interference with freedom of expression. If legislation were enacted to prohibit religious violence and religious hatred (in terms of the ICCPR), this would remove the need for a separate offence of blasphemy (the Attorney-General's announcement, noted above, does not refer to violence or hatred on religious grounds). Overcoming barriers to equality in the criminal justice system Equality and cultural and language barriers: In addition to considering aspects of substantive law, the Commission looked at barriers to equality in the operation of the criminal justice system. Many of these barriers arise from language and lack of knowledge and information about the law, including such matters as bail and the jury system, and lack of access to interpreting services. Recommendations were made to remove these barriers to equality in access to the legal system, by increasing awareness of legal rights, duties and responsibilities, and by including multicultural education in the training of people who work in the legal system. Among the issues considered were: the need for information and education about the law; the right to interpreters; (Report para 1.31; see also Access to Interpreters Administrative Review Council Access to Administrative Review by Members of Australia's Ethnic Communities [Report No. 34, 1991]) the operation of the criminal justice system; procedures for minor offences. Information and education The Recommendations: The Commission made a number of recommendations, the purpose of which was to improve the provision of community legal education, especially for people of non-english speaking background, to make the legal system and law officers more aware of the needs of non-english speaking communities, and to enhance the

prospects of members of those communities taking part in the legal profession. The recommendations apply to the whole legal system, not just to criminal law. An agency should be established to co-ordinate and support community legal education initiatives. [Para 2.27] The AIJA should include in its education and information programs for the judiciary and court personnel, programs designed to increase cross cultural awareness and to provide training in the use of interpreters. [para 2.27] Legal institutions should adopt recruitment policies at all levels which will in the long term ensure that their composition reflects that of the general population. [para 2.27] All federally funded educational institutions should include cross cultural studies in their legal vocational courses. University courses should provide special bridging courses for people seeking recognition of legal qualifications obtained overseas. [para 2.27] The criminal justice system The problem of lack of knowledge: In the area of criminal investigation, many problems arise for people of non-english speaking background because they do not fully understand the police role or their own rights, and because they may not have access to complaints mechanisms. Recommendations were made by the Commission to improve protection for non-english speaking background people, to ensure that information is more accessible to them, and that relevant information about the law is explained in community languages. The recommendations: To ensure that persons suspected of an offence are informed of their rights in a language they can understand. 36. Amend the Crimes Act l914 (Cth) to require that a person detained by the police be informed in a language in which he or she is reasonably fluent or the right to communicate with a friend or relative and the right to consult with, and have present a legal practitioner. Whenever an investigating official is required to inform a suspect of his or her rights in relation to an investigation procedure this information should be given in, or translated into, a language in which the suspect is reasonably fluent [para 10.21] To review the safeguards on police detention to see whether they are adequate for persons of non-english speaking background. 37. In the Attorney-General's review of the Crimes Act 1914 Part IC, particular attention should be paid to the experience of people of non-english speaking backgrounds and the effectiveness of the legislation in safeguarding their rights. The question whether the safeguards that currently apply to young persons and Aborigines and Torres Strait Islanders should be extended to persons of non- English speaking backgrounds should be reconsidered. [para 10.22] To improve access to the Ombudsman by persons of non-english speaking background in investigating complaints against the police. 38. The Ombudsman's resources should be supplemented to enable it to investigate complaints against the police more effectively, to carry out targeted information

campaigns, and to provide interpreting and translating services in order to improve access for non-english speaking complainants. [para 10 24] To ensure that people are given clear information about bail in a language they can understand. 39. The bail provisions in the Criminal Investigation Bill 1977 (Cth) and in the Criminal Investigation Bill l981 (Cth) should be enacted. [para 10.36] To ensure that the court can have regard to cultural background in deciding issues concerning the examination of witnesses and admissibility of evidence. 40. Those provisions in the Evidence Bill which specify characteristics of the witness to which a court is to have regard in exercising its control over the questioning of a witness, or the admissibility of evidence, should be amended to include cultural background and language of the witness or defendant [para 10.59]. To ensure that the option of affirming rather than swearing an oath is made a reality for witnesses. 41. The Evidence Bill 1991 (Cth) provisions concerning the swearing of witnesses should be enacted. The court should be under a duty to advise the witness that he or she may choose whether to swear or affirm and that these are equally valid ways of undertaking to tell the truth to the court [para 10.61] To encourage greater participation of people of non-english speaking background in the jury system. 42. When migrants become citizens, they should be given an opportunity to register immediately on the electoral roll. The Department of Immigration should include information about the jury system and jury duty in the information package supplied to applicants for citizenship. [para 10.63]. Other recommendations in this report, and in the Commission's earlier report on Evidence, will enhance the court's powers and obligations to ensure a fair trial and to regulate the manner of questioning witnesses, and the way evidence is given. The right to an interpreter International standards: Under international human rights standards, equality before the law implies equal access to the systems and structures established by government to protect citizen's rights. Where language and communication barriers impede equal access to the law failure to make adequate provision for an interpreter or other means to communicate could be a violation of equality rights, (ICCPR arts 2.1, 26, 14; CERD, art 5.a) or of the right to a fair hearing (ICCPR art 14.1). In the determination of a criminal charge a person is entitled, as a minimum guarantee, "to have the free assistance of an interpreter if he cannot understand or speak the language used in court" (ICCPR are 14.3.f; CROC art 40.2.b.vi. Communication Nos. 221/1987 and 323/1988, Yves Cadoret and Herve Le Bihan v. France (views adopted on 11 April 1991, 41st Session). Report of the

HRC Supp. No 40 (A/46/40)2 1991, p 219. Article 14 is concerned with procedural justice and is not violated by provision for the use of one official court language. It does not require states parties to make available to a person whose mother tongue differs from the official court language the services of an interpreter if that person is capable of understanding and expressing himself adequately in the official language). Even without this specific provision, access to an interpreter may be necessary to ensure a fair trial. Law Reform proposals concerning interpreters: At common law the court has a discretion to determine whether and to what extent an interpreter should be used. There is no right or presumption in favour of an interpreter. Some Australian states have legislation providing for an entitlement to an interpreter in certain circumstances (eg, Evidence Act 1929 s14(sa); Summary Offences Act 1953 (SA); Magistrates Court Act 1989 s40 (Vic); where the Court is satisfied that a defendant charged with an offence punishable with imprisonment does not have sufficient knowledge of English the Court must not hear or determine the proceedings without a competent interpreter interpreting it). The Law Reform Commission recommended in its 1987 report on Evidence (ALRC 38 App A cl 34. The draft clause to implement this is as follows: A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact. [cl 32, Evidence Bill 1991 (Cth)]) that, in effect, the presumption concerning interpreters be reversed, and that a witness be entitled to an interpreter unless it can be shown that the person can speak and understand English sufficiently to understand and respond adequately to questioning (A similar recommendation was made by the Royal Commission into Aboriginal Deaths in Custody, National Report, Vol 3 pp 79-80 rec 99; this was supported in the Government's Response p.363). Should there be any doubt in the matter it would have to be resolved in favour of the witness. The court would have to satisfy itself on clear grounds that it could refuse an interpreter in a particular case, and the finding on that issue would be subject to appeal. Multiculturalism and Law: In the Multiculturalism and Law reference the Commission concluded that most of the legal problems would be overcome by the recommendation in the Evidence report to change the presumption. The same view had been taken by the Commission in Aboriginal Customary Law (article 14.3.f; ACL para 596-600). That recommendation will be implemented by the Commonwealth Evidence Bill 1991, which applies to federal courts and in the ACT. To ensure the widest application of the new presumption concerning the right to use interpreters the Commission recommended that it be extended to the prosecution of all offences against the law of the Commonwealth, until such time as uniform evidence laws are introduced in all State and Territory jurisdictions (para 3.31). The effect would be that a person accused of a federal offence who does not understand English well enough to understand what is said in court should be entitled to an interpreter to interpret the whole of his or her trial; the cost should be met by the Commonwealth (para 3.36; Racist Violence; Report of the National Inquiry into Racist Violence 1991, 3-5-312, made a similar recommendation). The obligation to provide interpreters cannot be met effectively unless resources are made available (para 3.31). It would be necessary to ensure that interpreters of the right standard are actually available. [In the case of Dietrich, mentioned here today, the High Court held that the absence of legal representation meant that a fair trial had not been given to the accused.

This principle could possibly apply to the absence of an interpreter, or where the interpreting is inadequate. The Covenant on Civil and Political Rights covers this point. However, it needs to be remembered that the High Court could not apply the Covenant directly in Dietrich. Another basis had to be found for the decision. The Chief Justice and McHugh J commented that it was curious that, while the Australian courts could not apply the Covenant, Australia could be found to have failed to abide by its terms by the Human Rights Committee.] Procedures for prosecuting minor offences Infringement notices: There are a number of minor offences against Commonwealth law such as offences against quarantine, and home distilling, which affect many people of non- English speaking background. The Commission recommended that certain of these minor offences against Commonwealth law be dealt with by an infringement notice scheme instead of by prosecution in the criminal courts. This would be less costly, and would help avoid the stigma of prosecution, which is of particular importance for those who may have been unaware of the nature of the offence. Appropriate safeguards would be needed to avoid abuse. Conclusions The Commission's report on Multiculturalism and Law shows that the process of law reform can be used effectively to assess the general conformity of Australian law with the human rights obligations undertaken by the Australian government. It can identify areas where there have been or are likely to occur violations of specific human rights standards, and can demonstrate how particular standards could be made effective in the context of the Australian legal system. The Report Multiculturalism and the Law, together with the earlier report Aboriginal Customary Law, represent a significant attempt to free the law from its monocultural bias, and to open it up to the perceived needs of cultural and religious minorities. The two reports should not be seen as a final position on these issues, but as the beginning of a process of coming to terms with the cultural diversity which prevails in Australia. In the longer term wider participation by Aborigines and by members of other minority communities in the legal system and an increasing sensitivity of those who work in the law to the needs of cultural minorities may lead to further changes in the law and to solutions which are especially appropriate in the Australian environment. There has, as yet, been no government response to the Commission's Reports on Recognition of Aboriginal Customary Laws and Multiculturalism and Law. This conference will, I hope, help to ensure that attention will continue to be focussed on these issues. The success of a multicultural society, depends not just on legal measures, but also on acceptance by the general community and by legal institutions and the legal profession of the right of people to be different, to have different opinions, religions and traditions. Without this acceptance, multiculturalism cannot work. The law can help to encourage tolerant attitudes; but to be effective it should be supplemented by knowledge, understanding and communication of ideas. The Commission's report is intended to be a contribution to the process (from para 1.32).