Intercultural translation of vague legal language: The right to silence in the Northern Territory of Australia

Alex Bowen
ARDS Aboriginal Corporation | The University of Melbourne

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.

Publication history

Date received: 19 October 2019

Date accepted: 5 January 2021

Published online: 5 February 2021

Table of contents

Police interviews with suspects are an important step in gathering evidence about crimes. In Australia, police are generally required to inform suspects before an interview of their right to remain silent, also called ‘cautioning’. This study examines recorded translations that are designed to communicate this caution to Aboriginal suspects in the Northern Territory of Australia (NT) at the start of a police interview.

Full-text access is restricted to subscribers. Log in to obtain additional credentials. For subscription information see Subscription & Price. Direct PDF access to this article can be purchased through our e-platform.

References

Aboriginal Interpreter Service
2015a “Police Caution in Yolngu Matha (Djambarrpuyngu) for a Person in Custody.” YouTube video, 2:10. https://​youtu​.be​/h2YhiQU1Mh0
2015b “Police Caution in Kriol for a Person in Custody.” YouTube video, 1:46. https://​youtu​.be​/eCEmFiokQzw
2015c “ENG001a – Standardised Audio Police Caution (SAPC) – English Front-Translation – in Custody.” https://​cmc​.nt​.gov​.au​/_​_data​/assets​/pdf​_file​/0007​/433393​/ENG001a​-Standardised​-Audio​-Police​-Caution​-SAPC​-in​-custody​.pdf
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. http://​www​.oxfordhandbooks​.com​/view​/10​.1093​/oxfordhb​/9780199572120​.001​.0001​/oxfordhb​-9780199572120​-e​-21
American Bar Association
2016 “Resolution 110: An Accurate Translation of the Miranda Warning in Spanish.” House of Delegates of the American Bar Association. https://​www​.americanbar​.org​/groups​/diversity​/commission​_on​_hispanic​_legal​_rights​_responsibilities​/resolution​-110/
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. http://​espace​.cdu​.edu​.au​/view​/cdu:44891
Australian Law Reform Commission
1987 Evidence (ALRC Report 38). https://​www​.alrc​.gov​.au​/report​-38
2006 Uniform Evidence Law (ALRC Report 102). https://​www​.alrc​.gov​.au​/publications​/report​-102
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. http://​hdl​.handle​.net​/1885​/118730
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 15, 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. http://​yolngudictionary​.cdu​.edu​.au
Communication of Rights Group
2015 “Guidelines for Communicating Rights to Non-Native Speakers of English in Australia, England and Wales, and the USA.” http://​www​.une​.edu​.au​/_​_data​/assets​/pdf​_file​/0006​/114873​/Communication​-of​-rights​.pdf
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. https://​hdl​.handle​.net​/1959​.11​/7102
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 15, 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
Hale, Sandra Beatriz
2004 The Discourse of Court Interpreting: Discourse Practices of the Law, the Witness and the Interpreter. Amsterdam: John Benjamins. 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
Lomholt, Karsten
1991 “Problems of Intercultural Translation.” Babel 37 (1): 28–35. 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 21: 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 2: 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 23: 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 145: 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
R v Anunga
(1976) 11 ALR 412. Google Scholar logo with link to Google Scholar
Western Australia v Gibson
[2014] WASC 240.Google Scholar logo with link to Google Scholar
 
Mobile Menu Logo with link to supplementary files background Layer 1 prag Twitter_Logo_Blue