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David: Today, we're talking about language. To be specific, we're talking about offensive
language and first-person testimony. Elyse Methven and Anthea Vogl are two Quentin Bryce
law doctoral fellows in the faculty of law at the University of Technology in Sydney.
Their research and writing focuses on different aspects and ways that the law engages and
uses or, in fact, demands that we use language. First, Anthea, the question, "Can you tell
me where it all began?" this is a question that someone seeking refugee status is asked
all the time. It's the first task given to the applicant in Case 1007136 of 2011. Tell
me about that case. Anthea: That case is a case of a Zimbabwean
female applicant who came to Australia and wanted to make a claim on the basis that she
was being forced to marry someone who she didn't want to marry in Zimbabwe. The problem
with the "can you tell me where it all began" question is she's kind of dealing with her
life up to that point and to date, and the tribunal, which is the body that assesses
her claim, wants her to construct a story with an innate beginning, a middle, and an
end. "Can you tell me where it all began" is often a demand made of refugee applicants,
and it doesn't necessarily fit with their lives because they can't pinpoint a place
where their refugee claim began, but it's what the law demands of them.
David: So they're asked to use stock stories, and I suppose the law's expecting them to
deliver those stock stories in a particular way. That's a kind of unacceptable or acceptable
way of speaking. Elyse, that reminds me of your work in relation to offensive language.
Tell me the story of Couchy. Elyse: Okay. Melissa Couchy was wandering
the streets at about 4AM on the 21st of September, 2000, in inner city Brisbane. She was homeless,
intoxicated, and indigenous, and she was approached by a couple of police officers. One of them
asked her her name and address, and to that female police officer, she responded, "You
f****** c****." So she was arrested, and later she was found guilty of using insulting language,
which is the relevant offense in Queensland. She was convicted in the magistrate's court,
and then that conviction was upheld in both the court of appeal and in the high court.
David: Elyse, we're asked to use stock stories. In Anthea's work and in yours, it's about
acceptable or unacceptable language. Where do these standards come from? Is this something
that's well known by the law? Is it something that can be referenced?
Elyse: The law basically says that what is offensive has to be regarded in relation to
the context in which it's used and also according to the reasonable-person standard or community
standards. However, how the law assesses or comes up with community standards is rather
an opaque process. It's often left to the individual magistrate or judge or even police
officer to determine what those standards are.
David: Anthea, is it the same for you? I mean, are there standards that are referenced in
refugee tribunal cases? Anthea: One of the kind of nasties of refugee
cases is that the standards are often so inexplicit when a refugee's evidence is being judged,
so because it's an administrative tribunal and you have a decision-maker essentially
assessing the credibility of evidence rather than creating a legal standard all of the
time, we just have certain stories deemed to be plausible or implausible or credible
or incredible. It's the decision-maker's sense of plausibility that ultimately decides the
case or the decision-maker's sense of credibility. The problem with that is the decision-maker
has his or her own long history, cultural, ethnic, kind of racialized position, which
makes it really difficult to judge someone else's life as it's presented before you and
the plausibility of a particular series of events. They're very shifting standards, and
they very much inhere in the decision-maker in refugee decision-making.
David: If we have this range of shifting standards, what's the outcome when, say, in your case,
Anthea, a refugee makes a claim, tells their story, and the decision-maker doesn't believe
it? Anthea: If the decision-maker doesn't believe
that the story sounds plausible, the refugee applicant's evidence is rejected, so you never
get to the point of deciding whether or not his or her evidence fits in with the definition
of a refugee, according to the convention as it's enacted in Australian law. What you
get is a decision-maker saying, "I don't believe that story to begin with."
The decision that you referred to earlier is interesting because it includes an element
of the spiritual or the occult where the applicant claims that part of the reason why she was
forced to marry, it had to do with avenging spirits who had visited her town. As you might
imagine, to a decision-maker located in Australia, the Refugee Review Tribunal, the idea that
avenging spirits might play a kind of central role in a story is implausible, unlikely,
definitely incredible. That was one of the bases upon which the story is rejected, and
in another frame, avenging spirits who are part of her religious or spiritual or cultural
life, and she includes it in the story, and so that inability to understand the cultural
position of the applicant leads to her claim being rejected.
David: Elyse, we're dealing here with offensive-language cases, and of course, people like Couchy,
an indigenous woman on the streets at the time, these people are people coming before
the courts who come from divergent backgrounds, particularly from the decision-maker, in other
words, the judge. Is this the same experience in your research?
Elyse: Definitely. There are many parallels here with the cultural experience of the decision-maker,
being the judge or the magistrate, being quite different from the indigenous person. In Couchy's
case, you can see they clearly cannot relate at all to her experience. In that particular
case, the Queensland Court of Appeal actually denies Couchy her aboriginality. They say
it's not relevant. They say that the plight of indigenous people and relations between
the police and indigenous people are not relevant to the language and assessing the language
that she uses. This is despite the fact that, obviously,
we all use language in quite different ways individually, culturally, so the courts failed
to recognize this in applying this reasonable-person standard, which arguably is a more white-male
privileged standard. They also disregard Couchy's plight being homeless. They say that's not
relevant. It would be discrimination against richer white males to recognize the fact that
she is an indigenous woman who is homeless. David: With these questions of language and
law, how do you approach researching this? How do you actually find the material, and
then what do you do with it after your first view?
Anthea: Some of the best ways to approach questions of the way the law uses language
is simply to attend to the law and the judgments of the law as kind of social texts rather
than seeing them as eliciting a set of legal principles. You try and understand the way
they get to their arguments and the way those principles are constructed.
I find a whole different lexicon for judging how language is used in narrative theory.
Narrative theory doesn't necessarily talk about a judgment or a principle or a ratio,
but what it does is talk about kind of the structure of work, the time, the beginnings
and the middles and the ends, the causality between legal reasoning. I find that unlocks
a way of approaching law as text, and that is a useful way of kind of getting at the
question of what is the role of language in the law.
David: Anthea's work obviously deals with longer stories, but Elyse, yours is about
individual words or groups of words. Do you take a similar approach to yours, or how do
you approach this work? Elyse: Like Anthea, I do start with the legal
text, but do treat them just as regular texts in the way that here lawyers are, or judges
are constructing reality. I use a methodolgical tool called critical discourse analysis, which
basically says you need to critique texts in a very close, detailed manner, look for
hidden power constructions within those texts. My research subjects and texts differ quite
a lot to Anthea’s, in the way that, yes, it's only a small amount of text that's actually
being analyzed, but I actually look at the assumptions that judges use to critique those
swear words. Judges often are acting as linguists or what
I term pseudo-linguists. They are adopting the position of linguists without linguistic
expertise behind them and displacing any linguistic evidence in the meantime, saying that it's
not relevant to their determinations. I am looking at the texts and doing a very close
textual analysis at that time trying to uncover hidden power, values, and inequalities within
the text. David: Then, Elyse, if that's what you're
finding, what's a solution? Is it about changing law, or is about thinking differently?
Elyse: It could be a bit of both, to be honest. I think first we do have to think differently
about the law being something where people are making the law. They're constructing reality
in a certain way, and the ways that they do this become naturalized so that stories about
language and swearing, for example, that men might be less offended by swear words than
women actually become naturalized as truths or law. I think it's important to be critical
about that, and then maybe question the implications for the crime of offensive language. Is it
fair to have such a broadly-worded crime which relies on the reasonable-person or community
standards and is left to the individual magistrate to decide the outcome?
David: Anthea, for you, is it rethinking? Is it law reform? Is it some combination?
Anthea: I don't necessarily think it's about direct law reform. Maybe it is in the sense
that I definitely think we judge refugee testimony against standards that are unfair and unreasonable
in the sense that most of us, if we tried to narrate some of our recent pasts in order
to make a legal claim would find it really difficult to put together a nice, coherent
story. I think getting rid of some of those harsh standards would be a better way of approaching
refugee testimony. I also think that making explicit those judgments
about plausibility would be a good start, so, say, harking back to that question of
are avenging spirits a plausible or credible part of the story, the decision-maker should
have to say, "I simply don't believe that avenging spirits could play any role in a
credible story," and then maybe we could judge the decision-maker's own sense of plausibility
in a far more explicit and open way. I think refugee testimony is also mired in a political
context where it's really difficult to kind of argue for a longer and fairer process as
we're trying to shorten process and get rid of a lot of fair refugee-status determinations,
so all of those ideas exist in a difficult political context.
David: From one Quentin Bryce scholar to two others, thank you for your time.