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.