The promise of linguistic equity for migrants in Australian courtrooms: a cross-disciplinary perspective

ABSTRACT In human rights studies, much has been written and studied about civil, economic, political and social rights. Little has been explored about the linguistic human rights of migrants and minorities in justice-critical settings. Situated at the nexus of migration, human rights and sociolinguistic studies, this short essay walks through the current perspectives of linguistic equity for migrants and minorities in Australian interpreter-mediated courtroom encounters. The essay leaves the readers with three reflections: (1) clarifications on the use of nuanced terms such as linguistic equality and linguistic equity, (2) updated knowledge of the difficulties in achieving accuracy for migrants and minorities in court interpreting and (3) refreshed understanding of role-related practical challenges in the professional life of interpreters in court and beyond.


Introduction
According to the Language Right Handbook published by the Office of the United Nations High Commissioner for Human Rights, 2 linguistic human rights are concerned with the human and civil rights of individuals and collectives to choose languages for communication in private or public settings.These rights are based on several universal human rights, including freedom of expression and the right of the linguistic minority to use their language with other members of their community.In practice, there are three common areas in which linguistic rights are exercised.First, legal, administrative and judicial contexts, the right to represent oneself in their own language.Second, education settings, the right to acquire knowledge in one's own language; and third, media and communication, the right to receive information in one's own language.
There are three cornerstone international instruments that promote and protect linguistic rights.These canonical documents include the Universal Declaration of Human Rights (art 2), 3 the International Covenant on Civil and Political Rights (ICCPR) (art 27) 4 and the Convention on the Rights of the Child (arts 17, 29, 30, and 40). 5 The central spirit in these international conventions is that linguistic human rights are not exclusive rights to minority groups.In everyday life, we all have the right to be literate in the language(s) we find useful.However, there are ongoing struggles for linguistic human rights around the world.
With an overarching aim to raise the awareness of linguistic rights for migrants in Australian courts, this short commentary is organised into three sections: international migration and migrants in multicultural and multilingual Australia, linguistic equity for migrants and minorities, and interpreters as gatekeepers in courtrooms.

International migration and migrants in Australia
In contemporary migration studies, three prominent tendencies can be identified regarding the main flows of migrants: from the Global South to the Global North, from the East to the West, and the intra-regional and South-South migration.According to the United Nations Migration Report, among the 281 million international migrants in 2022, three of the five largest overseas populations originated from Asia, and Oceania hosts the highest proportion of international migrants. 6n Australia, since the mass influx of migrants from post-war European countries in the 1960s, multilingualism and multiculturalism have become evident in socio-political policy towards immigration.According to the latest Australian Bureau of Statistics on the overall population and international migrants, nearly half of Australia's population was born overseas and Australia is home to more than 300 languages, including the Indigenous languages, established and emerging, spoken and sign(ed) languages.7 Linguistic diversity necessitates a linguistically inclusive and culturally responsive framework for communities with limited English proficiency in a number of social and public service settings.These include appearing and (re)presenting in court, cooperating in police investigations, accessing social security and welfare, applying for affordable housing, and claiming single-parent, child care, pension, elderly care and widower benefits.In a multicultural and multilingual society, it is very important for the public administration to guarantee the migrants', minorities' and Indigenous peoples' right to speak, use and learn their mother tongue and have the free assistance of a translator or interpreter when accessing social and public services.

Linguistic equity for migrants and minorities
In the discussions of linguistic human rights, there are two distinct notions of equality: formal and substantive equality.Formal equality asserts that all people must be treated equally at all times.Substantive equality, or equity, is more concerned with equitable outcomes and equal opportunities for disadvantaged and marginalised people and groups in society.The former focuses on sameness, whereas the latter acknowledges the difference, as shown in Figure 1.
To elaborate on the differences between equality and equity, the term 'equality' describes a specific context in which all people are treated as equals regardless of their gender, race, ethnicity, socio-economic and educational background. 8In the Australian context, social inequalities describe the differences between groups of people that are hierarchical in nature.At its most basic core, it refers to the hierarchical distribution of social, political, economic and cultural resources.A crucial distinction in the study of inequality is marked by the difference between distributional (in)equality and (in)equality of opportunity.The distributional (in)equality is concerned with the extent to which everyone receives a similar amount of economic resources, whereas the (in)equality of opportunity deals with the extent to which people have a similar chance to obtain rewards, with less attention paid to the effects this has on the distribution of wealth, income and influence.
In comparison, the term 'equity' refers to the acknowledgement of individual differences (e.g.physiological traits, natural gifts and family endowments) in the so-called 'life lottery' at birth.Equity focuses on providing equal opportunities to close the gaps induced by life circumstances, such as loss of employment, property, family and beloved ones, and the ability to work. 9In this line of logic, the dissimilarities between 'equality' and 'equity' could be distilled into the balance between 'nature' (fixed traits) and 'nurture' (fixable circumstances).The equity-centred approach concentrates on fostering enabling conditions through a range of policy instruments to empower socio-economically underprivileged groups and narrow the disparities at birth.In the context of migration studies, equity can be characterised by migration incorporation approaches.There are two common conceptual approaches in migration incorporation: assimilation and multiculturalism. 10In terms of assimilation, scholars have identified seven different types or dimensions of assimilation. 11These include cultural (or behavioural) assimilation; structural assimilation, access to the organisations and institutions of the host society; marital assimilation, intermarriage of people from minority and majority groups; identificational assimilation, a shared sense of national identity or belonging; civic assimilation, absence of value conflicts and power struggles; attitude reception, absence of prejudice; and behaviour reception, absence of discrimination.
Building on this conceptual understanding, two assimilation processes can be identified: one is segmented assimilation, a process by which different groups of immigrants and their offspring assimilate into different social strata; the other is relational assimilation, a process by which both migrant and host populations adapt to each other, contributing to the mutual adaptation of the settled population and new arrivals.
The second conceptual approach to migration incorporation is multiculturalism.As Jansen denotes, multiculturalism is 'among the most chameleonic contemporary socio-cultural-political concepts'. 12In the ideal model of multiculturalism, the very distinction between core and minority groups and between public and private spheres become less significant, and the potential exists not just for acceptance of others but for understanding.What differentiates multiculturalism from assimilation is the attitude towards the difference.As explained by Alexander, the assimilation-focused approach perceives difference as a dividing force. 13In contrast, the multicultural approach values diversity as a source of strength and solidarity while reserving differences between various communities.In Australia's multicultural society, the growing number of migrants and intensifying level of diversity justify the need for competent translators and interpreters in a wide range of community settings, including social welfare, education, Medicare, courts and tribunals.For language minorities, new arrival migrants, and Indigenous peoples, translators and interpreters play an important role in ensuring equity and access to justice and public and social services.For the public administration, translators and interpreters carry out the duty as gatekeepers in multilingual communication endeavours and protect the institutional image and reputation for honouring and promoting the minorities', migrants' and Indigenous peoples' linguistic human rights.

Interpreters as gatekeepers in courtrooms
The right to an interpreter is provided for in international law.Article 14(3)(f) of the ICCPR 14 states that: in the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality […] to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
As a crucial part of linguistic equity and human rights, the right to an interpreter has been codified in many legislative and regulatory instruments and directives.For example, s 30 of the Evidence Act 1995 (NSW) stipulates that: 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.
However, the right to an interpreter has left three spaces for open discussions.These include clarifications on the use of nuanced terms such as linguistic equality and linguistic equity, updated knowledge of the difficulties in achieving accuracy in court interpreting, and refreshed understanding of role-related practical challenges in the professional life of interpreters in court and beyond.
To apply conceptual demystification to the study of interpreter-mediated courtroom interactions in Australia, this essay intends to establish three grounds that can be further applied as analytical apparatuses in interdisciplinary research.My first argument is that considering the differences in individual dispositions at birth and life circumstances in society, discretion should be given when describing language rights for migrants and minorities with limited English proficiency in interpreter-mediated courtroom discourses.When dealing with linguistic human rights issues in court, efforts should be made to distinguish linguistic equality and linguistic equity in different cases and contexts.
This leads to my second argument-the interpreter is a critical link to accessing equitable language services in court.Numerous studies have served to broaden and refresh our understanding of the role of interpreters in court including the recently published Routledge Handbook of Public Service Interpreting, edited by Gavioli and Wadensjö. 15wo shared concerns emerged from contributors to this comprehensive volume.The first is the technical impossibility of adopting a narrow-minded, mere mechanical view of our human interpreters in community, social and public service settings since community settings touch on some of the 'most private spheres of life'. 16The second is a series of practical challenges and difficulties in achieving the same linguistic force and effect between the source and target languages, 17 particularly when translating from a non-European language into a European language in videoconferencing-delivered remote hearings. 18In response to these concerns, several reasonable recommendations have been made on two specific aspects.The first is to foster interprofessional understanding and collaboration through knowledge exchanges.The second is to provide specialised training in legal settings delivered through formal interpreter education programs and continuous professional development courses.
The promise of linguistic equity and the recognition of the importance of court interpreters further lead me to believe in the actual feasibility of my third claim-foster an authentic service user-provider allyship rooted in mutual purpose and shared expectations.This user-provider allyship is built on strong professional ethics and healthy boundaries, in which users and providers view and treat each other as equal human beings in a professional relationship defined by clear role boundaries.On the user's side, priorities should be given to clarifying the expectations of what interpreters can actually deliver within their professional boundaries.In this vein, users should own their individual choices and the consequences of their personal choices.For example, the accused in criminal trials are strongly recommended not to over-privilege themselves as the 'paying client'.Instead, they should respect themselves as fully functioning humans with sound judgement and rational agency to know what is best for themselves.This means that when they receive undesirable sentencing, they should not make interpreters scapegoats, take it out on interpreters, or even badger interpreters unprofessionally.Actions that are considered badgering include filing malicious or vindictive complaints to the professional disciplinary board when ethical interpreters have done everything appropriate under the professional code of conduct and sending threatening SMS to interpreters' work phones or emails to interpreters' homes.To protect interpreters from targeted harassment coming from unreasonable clients, a privacy protection mechanism should be established and enforced through punitive measures for clients who harass interpreters.One example of punitive measures could be a temporary ban on service users who harassed interpreters from accessing interpreting services.
In summary, I conclude with three thoughts for further consideration.First, regarding linguistic equity in interpreter-mediated courtrooms, if a society fails to protect its weakest or less advantaged, then it fails to deliver its promise of a better-off society for all.
Second, a quote from Anton Chekhov, 'Knowledge is of no value unless you put it into practice'. 19Chekhov's quote highlights the urgency of applying the growing body of knowledge to solving real-life problems in practice.This short piece seeks to bridge the cross-disciplinary conversation on linguistic equity in court through an interpreter.Interpreters face many practical challenges in retaining the same language force and effect during the nuanced interlingual and intercultural meaning transfer.With the growing knowledge and interprofessional understanding, improvements can be made in promoting and protecting the language rights of migrants and minorities in Australia.
Last but not least, another quote from Ernest Hemingway, 'The world breaks everyone, and many are stronger from the broken places'. 20Hemingway's quote invites us to rethink how we, together as responsible members of our community, can facilitate individual and institutional endeavours to narrow the gap between chances at birth and opportunities in the life course through linguistic equity and social incorporation for migrants and minorities in interpreter-mediated courtrooms.We can envisage a more equitable society in near future.