Cover not available

Article published In: Legal and institutional translation: Functions, processes, competences
Edited by Fernando Prieto Ramos
[Target 33:2] 2021
► pp. 308–340

Get fulltext from our e-platform
JBE logo with link
PDF logo with download linkDownload PDF
authorization required

Intercultural translation of vague legal language

The right to silence in the Northern Territory of Australia

ORCiD logo with link | ARDS Aboriginal Corporation | The University of Melbourne
Published online: 5 February 2021
DOI logo with link
https://doi.org/10.1075/target.19181.bow
Abstract
Difficulties have long been observed in communicating legal rights to some Aboriginal people in Australia. In the Northern Territory, audio translations of the right to silence in Aboriginal languages can be used in police interviews. This study examines two sets of audio translations in two Aboriginal languages. Also included in each case are front-translations – intermediate English texts used to facilitate translation – as well as the legal texts that likely informed the translations. The audio translations include far more explicit information than either legal texts of the right, or oral explanations from police (evidenced in transcripts from police interviews). Analyses of context and implicature highlight that the legal text of the right is indeterminate: It is unclear what the text is intended to imply and communicate. Aboriginal translators are better placed than legal communicators to develop informative texts, because of their audience knowledge and intercultural skill. However, translators can only work with meaning provided or approved by their clients. Legal authorities, not translators, should be responsible for deciding the information to be communicated about rights, to meet the objectives of policies about rights. When the challenging and imperfect nature of intercultural legal translation is recognised, translators can use their insight into legal meaning to greatly improve communication with target audiences.
Article outline
  • 1.Introduction
  • 2.Underdeterminacy and vagueness
  • 3.The meaning of the caution
  • 4.Translating the caution for Aboriginal suspects
  • 5.The role of the translator or interpreter
  • 6.Translation methods
  • 7.Analysis of recorded translations
    • 7.1“The police cannot force you”
    • 7.2“The police won’t get angry with you and the magistrate won’t accuse you”
    • 7.3“Used in evidence”
  • 8.The vague legal text is ineffective and creates risks for translators
  • 9.Further steps
  • Acknowledgements
  • Notes
  • References
  • Legal sources
References (108)
References
Aboriginal Interpreter Service. 2015a. “Police Caution in Yolngu Matha (Djambarrpuyngu) for a Person in Custody.” YouTube video, 2:10. [URL]
. 2015b. “Police Caution in Kriol for a Person in Custody.” YouTube video, 1:46. [URL]
. 2015c. “ENG001a – Standardised Audio Police Caution (SAPC) – English Front-Translation – in Custody.” [URL]
. 2017. “Aboriginal Language Police Caution.” [URL]
Ainsworth, Janet. 2008. “‘You Have the Right to Remain Silent… But Only If You Ask for It Just So’: The Role of Linguistic Ideology in American Police Interrogation Law.” International Journal of Speech Language and the Law 15 (1): 1–21. Google Scholar logo with link to Google Scholar
. 2012. “The Meaning of Silence in the Right to Remain Silent.” In The Oxford Handbook of Language and Law, edited by Lawrence M. Solan and Peter M. Tiersma. [URL]
American Bar Association. 2016. “Resolution 110: An Accurate Translation of the Miranda Warning in Spanish.” House of Delegates of the American Bar Association. [URL]
Arthur, Jay Mary. 1996. Aboriginal English: A Cultural Study. Melbourne: Oxford University Press.Google Scholar logo with link to Google Scholar
Atkinson, Caroline Lisbeth. 2008. The Violence Continuum: Australian Aboriginal Male Violence and Generational Post-Traumatic Stress. PhD diss. Charles Darwin University. [URL]
AUSIT. 2012. “AUSIT Code of Ethics and Code of Conduct.” [URL]
Australian Law Reform Commission. 1987. Evidence (ALRC Report 38). [URL]
. 2006. Uniform Evidence Law (ALRC Report 102). [URL]
Baker, Mona. 2006. “Contextualization in Translator- and Interpreter-Mediated Events.” Journal of Pragmatics 38 (3): 321–237. Google Scholar logo with link to Google Scholar
Battiste, Marie, and James (Sa’ke’j) Youngblood Henderson. 2000. Protecting Indigenous Knowledge and Heritage: A Global Challenge. Saskatoon: Purich Publishing.Google Scholar logo with link to Google Scholar
Bercea, Raluca. 2014. “Legal Translation and Legal Interpretation: The Epistemological Gap.” The Translator 20 (3): 273–289. Google Scholar logo with link to Google Scholar
Berk-Seligson, Susan. 2016. “Totality of Circumstances and Translating the Miranda Warnings.” In Discursive Constructions of Consent in the Legal Process, edited by Susan Ehrlich, Diana Eades, and Janet Ainsworth, 241–263. New York: Oxford University Press. Google Scholar logo with link to Google Scholar
Bowen, Alex. 2017. ‘It’s Your Rights, Ok?’: Explaining the Right to Silence to Aboriginal Suspects in the Northern Territory. MA diss. Australian National University. [URL]
. 2019. “‘You Don’t Have to Say Anything’: Modality and Consequences in Conversations about the Right to Silence in the Northern Territory.” Australian Journal of Linguistics 39 (3): 347–374. Google Scholar logo with link to Google Scholar
Briggs, Joseph, and Russ Scott. 2018. “Police Interviews and Coerced False Confessions: Gibson v Western Australia (2017) 51 WAR 199.” Journal of Judicial Administration 28 (1): 22–43.Google Scholar logo with link to Google Scholar
Carston, Robyn. 2002. Thoughts and Utterances: The Pragmatics of Explicit Communication. Malden, MA: Blackwell. Google Scholar logo with link to Google Scholar
. 2013. “Legal Texts and Canons of Construction: A View from Current Pragmatic Theory.” In Law and Language: Current Legal Issues Volume 151, edited by Michael Freeman and Fiona Smith, 8–33. Oxford: Oxford University Press. Google Scholar logo with link to Google Scholar
Yolŋu Matha Dictionary. 2014. s.v. “Wurraŋatjarra.” Accessed April 20, 2020. [URL]
Communication of Rights Group. 2015. “Guidelines for Communicating Rights to Non-Native Speakers of English in Australia, England and Wales, and the USA.” [URL]
Cooke, Michael S. 1995. “Understood by All Concerned? Anglo/Aboriginal Legal Translation.” In Translation and the Law, edited by Marshall Morris, 37–63. Amsterdam: John Benjamins. Google Scholar logo with link to Google Scholar
1998. Anglo/Yolngu Communication in the Criminal Justice System. PhD diss. University of New England. [URL]
Cooke, Michael S., and Helen Yunupingu. 1998. Djambarrpuyngu Police Caution Preamble. Unpublished.Google Scholar logo with link to Google Scholar
Correia, Renato. 2003. “Translation of EU Legal Texts.” In Crossing Barriers and Bridging Cultures: The Challenges of Multilingual Translation for the European Union, edited by Arturo Tosi, 38–44. Clevedon: Multilingual Matters.Google Scholar logo with link to Google Scholar
Cotterill, Janet. 2000. “Reading the Rights: A Cautionary Tale of Comprehension and Comprehensibility.” International Journal of Speech Language and the Law 7 (1): 4–25. Google Scholar logo with link to Google Scholar
Cunneen, Chris. 2001. Conflict, Politics and Crime: Aboriginal Communities and the Police. Crows Nest: Allen & Unwin.Google Scholar logo with link to Google Scholar
Davis, Krista, C. Lindsay Fitzsimmons, and Timothy E. Moore. 2011. “Improving the Comprehensibility of a Canadian Police Caution on the Right to Silence.” Journal of Police and Criminal Psychology 26 (2): 87–99. Google Scholar logo with link to Google Scholar
Eades, Diana. 2000. “I Don’t Think It’s an Answer to the Question: Silencing Aboriginal Witnesses in Court.” Language in Society 29 (2): 161–195. Google Scholar logo with link to Google Scholar
. 2008a. Courtroom Talk and Neocolonial Control: Language, Power and Social Process. New York: Mouton de Gruyter. Google Scholar logo with link to Google Scholar
. 2008b. “Telling and Retelling Your Story in Court: Questions, Assumptions and Intercultural Implications.” Current Issues in Criminal Justice 20 (2): 209–230. Google Scholar logo with link to Google Scholar
. 2012. “Communication with Aboriginal Speakers of English in the Legal Process.” Australian Journal of Linguistics 32 (4): 473–489. Google Scholar logo with link to Google Scholar
. 2018. “Communicating the Right to Silence to Aboriginal Suspects: Lessons from Western Australia v Gibson.” Journal of Judicial Administration 28 (1): 4–21.Google Scholar logo with link to Google Scholar
Eggleston, Elizabeth. 1976. Fear, Favour or Affection: Aborigines and the Criminal Law in Victoria, South Australia and Western Australia. Canberra: ANU Press.Google Scholar logo with link to Google Scholar
Endicott, Timothy. 2011. “The Value of Vagueness.” In Philosophical Foundations of Language in the Law, edited by Andrei Marmor and Scott Soames, 14–30. Oxford: Oxford University Press.Google Scholar logo with link to Google Scholar
Englund, Harri. 2006. Prisoners of Freedom: Human Rights and the African Poor. Berkeley: University of California Press. Google Scholar logo with link to Google Scholar
Fairclough, Norman. 1992. Discourse and Social Change. Cambridge: Polity Press.Google Scholar logo with link to Google Scholar
Fenton, Sabine, and Paul Moon. 2002. “The Translation of the Treaty of Waitangi: A Case of Disempowerment.” In Translation and Power, edited by Maria Tymoczko and Edwin Gentzler, 25–44. Amherst: University of Massachusetts Press.Google Scholar logo with link to Google Scholar
Gentzler, Edwin, and Maria Tymoczko. 2002. “Introduction.” In Translation and Power, edited by Maria Tymoczko and Edwin Gentzler, xi–xviii. Amherst: University of Massachusetts Press.Google Scholar logo with link to Google Scholar
Gibbons, John. 2001. “Revising the Language of New South Wales Police Procedures: Applied Linguistics in Action.” Applied Linguistics 22 (4): 439–469. Google Scholar logo with link to Google Scholar
Glanert, Simone, and Pierre Legrand. 2013. “Foreign Law in Translation: If Truth Be Told…” In Law and Language: Current Legal Issues Volume 151, edited by Michael Freeman and Fiona Smith, 513–532. Oxford: Oxford University Press. Google Scholar logo with link to Google Scholar
Gutt, Ernst-August. 2010. Translation and Relevance: Cognition and Context. 2nd ed. London: Routledge.Google Scholar logo with link to Google Scholar
. 2007. “The Challenges of Court Interpreting: Intricacies, Responsibilities and Ramifications.” Alternative Law Journal 32 (4): 198–202. Google Scholar logo with link to Google Scholar
Harvey, Malcolm. 2000. “A Beginner’s Course in Legal Translation: The Case of Culture-Bound Terms.” ASTTI/ETI 2 (24): 357–369.Google Scholar logo with link to Google Scholar
Heydon, Georgina. 2011. “Silence: Civil Right or Social Privilege? A Discourse Analytic Response to a Legal Problem.” Journal of Pragmatics 43 (9): 2308–2316. Google Scholar logo with link to Google Scholar
Hjort-Pedersen, Mette, and Dorrit Faber. 2010. “Explicitation and Implicitation in Legal Translation – A Process Study of Trainee Translators.” Meta 55 (2): 237–250. Google Scholar logo with link to Google Scholar
Holcombe, Sarah. 2015. “The Revealing Processes of Interpretation: Translating Human Rights Principles into Pintupi-Luritja.” The Australian Journal of Anthropology 26 (3): 428–441. Google Scholar logo with link to Google Scholar
House, Juliane. 2006. “Text and Context in Translation.” Journal of Pragmatics 38 (3): 338–358. Google Scholar logo with link to Google Scholar
Jakobson, Roman. 1959. “On Linguistic Aspects of Translation.” In On Translation, edited by Reuben Arthur Brower, 232–239. Cambridge, MA: Harvard University Press.Google Scholar logo with link to Google Scholar
Joseph, John E. 1995. “Indeterminacy, Translation and the Law.” In Translation and the Law, edited by Marshall Morris, 13–36. Amsterdam: John Benjamins. Google Scholar logo with link to Google Scholar
Katan, David. 1999. Translating Cultures: An Introduction for Translators, Interpreters and Mediators. Manchester: St Jerome.Google Scholar logo with link to Google Scholar
. 2012. “Cultural Approaches to Translation.” In The Encyclopedia of Applied Linguistics, edited by Carol A. Chapelle, 1–7. Oxford: Blackwell. Google Scholar logo with link to Google Scholar
Klaudy, Kinga. 2009. “Explicitation.” In Routledge Encyclopedia of Translation Studies, edited by Mona Baker and Gabriela Saldanha, 104–108. London: Routledge.Google Scholar logo with link to Google Scholar
Kurzon, Dennis. 1996. “To Speak or Not to Speak: The Comprehensibility of the Revised Police Caution (PACE).” International Journal for the Semiotics of Law 9 (1): 3–16. Google Scholar logo with link to Google Scholar
Laster, Kathy, and Veronica L. Taylor. 1994. Interpreters and the Legal System. Sydney: Federation Press.Google Scholar logo with link to Google Scholar
Liddicoat, Anthony J. 2009. “Communication as Culturally Contexted Practice: A View from Intercultural Communication.” Australian Journal of Linguistics 29 (1): 115–133. Google Scholar logo with link to Google Scholar
2016. “Intercultural Mediation, Intercultural Communication and Translation.” Perspectives 24 (3): 354–364. Google Scholar logo with link to Google Scholar
Lindstrom, Lamont. 1992. “Context Contests: Debatable Truth Statements on Tanna (Vanuatu).” In Rethinking Context: Language as an Interactive Phenomenon, edited by Allesandro Duranti and Charles Goodwin, 101–124. Cambridge: Cambridge University Press.Google Scholar logo with link to Google Scholar
Livnat, Zohar. 2017. “‘There Are No Words That Are “Clear” in and of Themselves’: Meta-Pragmatic Comments and Semantic Analysis in Legal Interpretation.” International Journal of Legal Discourse 2 (1): 153–170. Google Scholar logo with link to Google Scholar
Maley, Yon. 1994. “The Language of the Law.” In Language and the Law, edited by John Gibbons, 11–50. London: Pearson.Google Scholar logo with link to Google Scholar
Marmor, Andrei. 2011. “Can the Law Imply More Than It Says? On Some Pragmatic Aspects of Strategic Speech.” In Philosophical Foundations of Language in the Law, edited by Andrei Marmor and Scott Soames, 83–104. Oxford: Oxford University Press. Google Scholar logo with link to Google Scholar
McLaughlin, Prudence. 1996. Caught in the Caution: Aboriginal Responses to Police Questioning: The Case of Todd, Anthony and Moonlight. MA diss. University of Sydney.Google Scholar logo with link to Google Scholar
Mildren, Dean. 1997. “Redressing the Imbalance Against Aboriginals in the Criminal Justice System.” Criminal Law Journal 211: 7–22.Google Scholar logo with link to Google Scholar
. 1999. “Redressing the Imbalance: Aboriginal People in the Criminal Justice System.” Forensic Linguistics 6 (1): 137–160.Google Scholar logo with link to Google Scholar
Morris, Ruth. 1995. “The Moral Dilemmas of Court Interpreting.” The Translator 1 (1): 25–46. Google Scholar logo with link to Google Scholar
. 2010. “Images of the Court Interpreter: Professional Identity, Role Definition and Self-Image.” In Profession, Identity and Status: Translators and Interpreters as an Occupation, edited by Rakefet Sela-Sheffy and Miriam Schlesinger. special issue of Translation and Interpreting Studies 5 (1): 20–40.Google Scholar logo with link to Google Scholar
Mushin, Ilana, and Rod Gardner. 2009. “Silence is Talk: Conversational Silence in Australian Aboriginal Talk-in-Interaction.” Journal of Pragmatics 41 (10): 2033–2052. Google Scholar logo with link to Google Scholar
Nakane, Ikuko. 2007. “Problems in Communicating the Suspect’s Rights in Interpreted Police Interviews.” Applied Linguistics 28 (2): 87–112. Google Scholar logo with link to Google Scholar
Pavlenko, Aneta, Elizabeth Hepford, and Scott Jarvis. 2019. “An Illusion of Understanding: How Native and Non-Native Speakers of English Understand (and Misunderstand) Their Miranda Rights.” International Journal of Speech, Language and the Law 26 (2) 181–207. Google Scholar logo with link to Google Scholar
de Pedro Ricoy, Raquel, Rosaleen Howard, and Luis Andrade Ciudad. 2018. “Walking the Tightrope: The Role of Peruvian Indigenous Interpreters in Prior Consultation Processes.” Target 30 (2): 187–211. Google Scholar logo with link to Google Scholar
Pirker, Benedikt, and Jennifer Smolka. 2017. “Making Interpretation More Explicit: International Law and Pragmatics.” Nordic Journal of International Law 86 (2): 228–266. Google Scholar logo with link to Google Scholar
Pitarch, Pedro. 2008. “The Labyrinth of Translation: A Tzeltal Version of the Universal Declaration of Human Rights.” In Human Rights in the Maya Region: Global Politics, Cultural Contentions, and Moral Engagements, edited by Pedro Pitarch, Shannon Speed, and Xochitl Leyva-Solano, 91–121. Durham: Duke University Press. Google Scholar logo with link to Google Scholar
Poon, Wai Ye Emily. 2005. “The Cultural Transfer in Legal Translation.” International Journal for the Semiotics of Law 18 (3): 307–323.Google Scholar logo with link to Google Scholar
Rock, Frances. 2007. Communicating Rights: The Language of Arrest and Detention. Basingstoke: Palgrave Macmillan. Google Scholar logo with link to Google Scholar
Russell, Sonia. 2000. “‘Let Me Put It Simply…’: The Case for a Standard Translation of the Police Caution and Its Explanation.” International Journal of Speech Language and the Law 7 (1): 26–48. Google Scholar logo with link to Google Scholar
Shuy, Roger W. 1998. The Language of Confession, Interrogation, and Deception. Thousand Oaks: Sage.Google Scholar logo with link to Google Scholar
Sperber, Dan. 1996. Explaining Culture: A Naturalistic Approach. Oxford: Wiley Blackwell.Google Scholar logo with link to Google Scholar
Sperber, Dan, and Deirdre Wilson. 1995. Relevance: Communication and Cognition. 2nd ed. Malden, MA: Wiley Blackwell.Google Scholar logo with link to Google Scholar
. 1997. “Remarks on Relevance Theory and the Social Sciences.” Multilingua 16 (2–3): 145–52. Google Scholar logo with link to Google Scholar
St. Johnston, T. E. 1966. “The Judges’ Rules and Police Interrogation in England Today.” The Journal of Criminal Law, Criminology, and Police Science 57 (1): 85–92. Google Scholar logo with link to Google Scholar
Stern, Ludmila. 2004. “Interpreting Legal Language at the International Criminal Tribunal for the Former Yugoslavia: Overcoming the Lack of Lexical Equivalents.” The Journal of Specialised Translation 21: 63–75.Google Scholar logo with link to Google Scholar
Stolze, Radegundis. 2001. “Translating Legal Texts in the EU.” Perspectives 9 (4): 301–311. Google Scholar logo with link to Google Scholar
Wendland, Ernst R. 1997. “‘A Review of “Relevance Theory’ in Relation to Bible Translation in South-Central Africa. Part II.” Journal of Northwest Semitic Languages 23 (1): 83–108.Google Scholar logo with link to Google Scholar
Widdowson, Henry George. 2008. Text, Context, Pretext: Critical Issues in Discourse Analysis. Malden, MA: Wiley Blackwell.Google Scholar logo with link to Google Scholar
Wierzbicka, Anna. 2010. Experience, Evidence, and Sense: The Hidden Cultural Legacy of English. New York: Oxford University Press. Google Scholar logo with link to Google Scholar
Wilson, Deirdre. 2011. “Relevance and the Interpretation of Literary Works.” UCL Working Papers in Linguistics 231: 69–80.Google Scholar logo with link to Google Scholar
Wilson, Deirdre, and Robyn Carston. 2019. “Pragmatics and the Challenge of ‘Non-Propositional’ Effects.” Journal of Pragmatics 1451: 31–38. Google Scholar logo with link to Google Scholar
Wilson, Deirdre, and Dan Sperber. 2002. “Truthfulness and Relevance.” Mind 111 (443): 583–632. Google Scholar logo with link to Google Scholar
Zethsen, Karen Korning. 2009. “Intralingual Translation: An Attempt at Description.” Meta 54 (4): 795–812. Google Scholar logo with link to Google Scholar
Legal sources
Legislation
Evidence (National Uniform Legislation) Act 2011 (NT).
Local Court Act 2015 (NT).
Police Administration Act 1978 (NT).
Judgments
MacPherson v The Queen (1981). 147 CLR 512.Google Scholar logo with link to Google Scholar
Police v Jawrarla [2006]. NTMC 043.Google Scholar logo with link to Google Scholar
Western Australia v Gibson [2014]. WASC 240.Google Scholar logo with link to Google Scholar
Cited by (7)

Cited by seven other publications

Phanthaphoommee, Narongdej & Nuntiya Doungphummes
2024. Guest editorial: When intercultural communication meets translation studies: divergent experiences in qualitative inquiries. Qualitative Research Journal 24:2 ► pp. 93 ff. DOI logo
Eades, Diana, Helen Fraser & Georgina Heydon
2023. Forensic Linguistics in Australia, DOI logo
Fraser, Helen
2022. A Framework for Deciding How to Create and Evaluate Transcripts for Forensic and Other Purposes. Frontiers in Communication 7 DOI logo
Bowen, Alex
2021. Explaining the right to silence underAnunga: 40 years of a policy about language. Griffith Law Review 30:1 ► pp. 18 ff. DOI logo
Bowen, Alex
2025. Intercultural Communication in Legal Contexts. In The Encyclopedia of Applied Linguistics, ► pp. 1 ff. DOI logo
Grey, Alexandra & Alyssa A. Severin
2021. An audit of NSW legislation and policy on the government’s public communications in languages other than English. Griffith Law Review 30:1 ► pp. 122 ff. DOI logo
[no author supplied]
2022. Specifics of Translation Rendering of Concept JUSTICE / СПРАВЕДЛВІСТЬ in Ukrainian Translations of English International Legal Discourse. Mìžnarodnij fìlologìčnij časopis 13:2 DOI logo

This list is based on CrossRef data as of 4 december 2025. Please note that it may not be complete. Sources presented here have been supplied by the respective publishers. Any errors therein should be reported to them.

Mobile Menu Logo with link to supplementary files background Layer 1 prag Twitter_Logo_Blue