We received a complaint from a professional court user who attended court to give evidence in support of a member of the First Peoples community.⁴⁴ The complaint alleged that the Officer’s conduct was racist.

We listened to the audio recording of the proceeding. During the complainant’s evidence, the Officer used the phrase ‘native accent’ when referring to the complainant’s speech and made other comments that indicated the Officer did not understand the complainant’s speech.

When we investigate a complaint from, about, or related to the treatment of First Peoples by judicial officers or VCAT members, we do so in the context of the wider experience of First Peoples in the legal system by reviewing research on culturally sensitive courtcraft and seeking perspectives from relevant First Peoples experts.

Noting that:

the use of the phrase ‘native accent’ may have particular connotations for First Peoples;
the complainant represented an organisation that provided services to First Peoples;
the defendant identified as First Peoples; and
other First Peoples, including members of the defendant’s family, may have been attending court.

we sought the perspectives of First Peoples experts regarding the Officer’s conduct, including the Dhumba Murmuk Djerring Unit (DMDU) at Court Services Victoria and First Peoples academics, and reviewed research on culturally sensitive courtcraft to determine how the expression ‘native accent’ may be perceived.

It is not our role to determine ideal or preferred conduct but to make an objective assessment about whether specific conduct is appropriate in all the relevant circumstances. Although we considered that the expression was unnecessary and did not reflect the kind of culturally sensitive practices that need to be incorporated into the mainstream criminal and legal justice systems, we did not consider that a reasonable member of the community would perceive the Officer’s conduct as racist or discriminatory because:

The phrase was used as an adjective to describe the complainant’s accent, not the defendant’s, and it was sometimes used in Australian legal contexts as a neutral way of describing a person’s speech.⁴⁵ For example, the term is used several times in resources produced or endorsed by First Nations organisations in reference to a person’s speech.⁴⁶
At the relevant time, the Officer referred to the complainant’s talking speed, and his tone was polite or neutral. The Officer’s comment explained why it would assist the court if the complainant spoke more slowly. There was no indication that ‘native accent’ was intended to convey a lack of respect towards the complainant. Rather, it appeared directed at ensuring the evidence was properly understood and taken into account.
The Officer did not remark on the complainant’s accent at any other time. Rather, the Officer commented several times on the complainant’s talking speed and the content of his answers. The adjective was used once in the context of a busy criminal list. In analogous cases on apprehended bias, the courts have held that a reasonable observer must not look at comments ‘taken out of context and then weighed in isolation’ in determining whether core judicial values have been offended by judicial conduct.⁴⁷

We dismissed the complaint on the basis that it was not substantiated.

⁴⁴ The complainant did not identify as First Peoples.

⁴⁵ See, e.g., DPP v Huan [2022] VCC 1551 at [31]; Natalie Sheard, ‘Employment Discrimination by Algorithm: Can Anyone be Held to Account?’ (2022) 45(2) UNSW Law
Journal 617 at 629, 639–640.

⁴⁶ The Plain English Legal Dictionary: Northern Territory Criminal Law (2015) refers several times to ‘native speakers of English’ in contrast to ‘a person who grows up speaking an Aboriginal language’. The dictionary was prepared by Aboriginal Resource and Development Services, the North Australian Aboriginal Justice Agency, and the Aboriginal Interpreter Service; it is quoted in the National Indigenous Australian Agency’s Commonwealth Protocol Fact Sheet: Indigenous Language Translation Services (2017).

⁴⁷Galea v Galea (1990) 19 NSWLR 263 at 279. See, eg, SZCJP v Minister for Immigration [2006] FMCA 168 at [9] (‘it would be difficult to come to the conclusion that an allegation based solely on one comment could give rise to [an apprehension of bias] unless that comment was … outrageous’).

The importance of culturally sensitive language and practices