In light of the protests sparked by the murder of George Floyd in Minneapolis, it is time to consider the role of freedom of expression in Australia’s own criminal justice system.
This extends to reporting on First Nations prisoners to the circulation of evidence to the question of rights on the inside. Deaths in custody here is the peak expression of violence, but violence permeates the entire criminal justice system, and, not only historically. One particular manifestation of this, which has direct consequences for freedom of expression, is the linguistic rights of First Nations and CaLD prisoners.
It is important to remember that incarceration disproportionately affects First Nations people. That is the context in which this takes place, and we see a global perspective on this with the diagrams below:
Adult imprisonment rates per 100,000 adults in 2010 and 2010-11.
Adult imprisonment rates per 100,000 adults in 2015.
Imprisonment rates are not the topic here, but they inform this piece with the aim it contributes to a change in these terms. How does this interact with freedom of expression and PEN’s brief?
It is important to note that freedom of expression is not only the right to say whatever you like. It is not only about hate speech directed towards the less powerful. If anything, that is a gross perversion of freedom of expression and in contravention of its true nature.
Freedom of expression includes the linguistic rights of First Nations and CaLD people in the public arena. That means recognising English as an official language so long as it does not deny the ability to speak, read, write, access information, and gain support from the state in other languages.
We have seen this most recently during the pandemic where health information was disseminated in tens of languages. This not only speaks to our multicultural reality, but is a fundamental right accorded to people here. That includes, most especially, First Nations people and others that go through the courts or interact with police or that become prisoners. They have the freedom to express themselves in their traditional languages, to access information in their mother tongue, to have their legal rights explained in words that are legible for them.
In many cases, individuals who go through the criminal justice system face hostile linguistic conditions. As defendants in courts, many First Nations, and sometimes CaLD people, are required to speak English without the presence of interpreters. This is despite the fact that many do not speak English at home, professionally, or as sovereign subjects. This goes against their fundamental linguistic rights in their own traditional country. In certain cases, several people people plead ‘guilty’ without understanding what that means.
This is to say nothing of the other issues facing Indigenous people in the court systems, particularly in remote areas. Or the barriers to freedom of expression in other places of government, including recent incidents in the Northern Territory parliament where Indigenous representatives were forced to speak English only.
There are ways to remedy this particular aspect of criminal justice, and, it is about reforming a key site of language use as part of a wider response to the current attacks on freedom of expression. This includes:
- Providing access to interpreters in all legal proceedings.
- Funding First Nations language programs in community legal centres.
- Helping safeguard and recognise First Nations languages in the criminal justice system, and to encouraging judges and other legal professionals to learn First Nations languages with First Nations guidance and protocol.
- To teach and recognise First Nations languages in prisoner rehabilitation programs, including juvenile detention.
- To offer cultural materials in First Nations languages within the prison system, including juvenile detention.
When viewed in next to ‘Blak Lives Matter’ and the defunding of literary journals, closure of regional newspapers, university clamp downs on free protest, and technological changes, criminal justice reform must be central to freedom of expression.
It is about extending what we take for granted to prisoners in order to ensure that a truer form of justice is encouraged. This helps us towards linguistic rights and freedom of expression as true public goods that matter to the lives of all citizens here.