The purpose of the Communicating: The Heart of Literacy symposium is “to continue to build and enact the collaboration and courage required to positively move Tasmania’s ‘wicked’ literacy problem”.

From my experience of over 40 years in the Criminal Justice system including 30 years sitting in courts around Tasmania I thought I would pass on some observations which might assist in the debate over what steps can be taken to address what I see is a most vital issue. In my experience literacy issues do not simply stop at an inability to read or write but flow on to an inability to communicate even in general terms.

Persons who appear in courts in this State and I am sure elsewhere in the world are generally stressed and nervous. They are not there by choice and many of course are there for the first time and they have little knowledge of the legal system the words used in it and the rituals that are observed. They are keenly aware they cannot read or write but for various reasons often do not tell anyone.

They are handed pieces of paper to read which are meant to be helpful and to assist them in the process. They cannot of course read them and their subsequent failure to do what the contents of the document asked them to may often be seen as a contemptuous attitude to the court process and they are treated often as being uncooperative. They develop a mistrust of the system.

In a recent Tasmanian Law Reform Commission Report entitled Facilitating Equal Access to Justice: An Intermediary / Communication Assistant Scheme for Tasmania? the following statement occurs:

“Failure to accommodate people with communication needs adequately in the criminal justice system has serious ramifications for case outcomes, and, importantly, for justice itself. It may mean that crimes they report are not prosecuted or that they are exposed to unjust conviction for crimes they are alleged to have committed. “

And it is observed:

“There is currently no statutory or practice framework covering the provision of communication/intermediary services to assist the legal profession when interacting with people with communication needs.”

So, if those observations are correct and I suspect they are, we have a criminal justice system ill-equipped from the very start to assist people who have problems with communication often based on their poor (or non-existent) literacy skills.

Of course, as we all know for a number of reasons, particularly in the Magistrates Court, many people appear without the benefit of legal assistance. It is often not known to the sitting Magistrate that a person may have literacy difficulties until it becomes obvious, perhaps because of the person’s apparent problems in reading, say, a suggested list of their criminal history, that the Magistrate may be put on alert. Magistrates as with lawyers have no special training to deal with persons who have such issues save to attempt to ensure that they understand the process and if there is a risk they cannot, to try to assist them or obtain expert services to do so. In the hustle and bustle of busy court rooms sometimes this does not occur.

All citizens have a right to a fair hearing and to be treated fairly and justly and if they cannot communicate their situation to the court there is a real risk of injustice if the court proceeds without them being able to participate in a meaningful way.

Part of communication of course is that the Court is going to listen to you and take note of what you say and then deal with your case appropriately.

Courts have in recent years taken a different course in dealing with certain offenders and new courts have emerged commonly called “problem solving” Courts.

The problem-solving court magistrate of course deals more directly with persons before the court even if they have a lawyer. It was noted in a recent article entitled “The New Judicial Role” by Sharon Roach Anleu and Kathy Mack that:

“An active judicial officer is central to the implementation of more engaged judging. Judicial officers using new approaches will be more interested in the welfare of litigants, actively interact with and listen to participants, engage in direct dialogue and be less formal and impersonal than their more traditional counterparts.”

The authors make the following important observation:

“This focus on the nature and quality of the interaction between judicial officers and the individuals appearing before them, emphasises the significance of communication, especially listening, empathy and direct personal engagement.”

It can be seen, I think, that the communication issue is well recognised in the court system but addressing it in a really meaningful way has taken some time to gain real momentum.

This approach by Magistrates will of course help and involve people in the process but these courts are only a small part of the courts business. The risk of injustice will unfortunately continue, and one hopes the discussions that take place at the symposium and subsequently will open some avenues for positive developments to address this problem.

Michael Hill retired in 2015 after 30 years on the Magistrates Court Bench in Tasmania the last 6 as Chief Magistrate. He was instrumental in the introduction of Problem solving Courts in Tasmania  and still speaks in the community on those approaches. Here he writes for Communicating: The Heart of Literacy – an initiative supporting public dialogue about communicating, literacy, enablement, collaboration and relational trust. Find more at chattermatters.com.au.

This article was first published in The Mercury on 30th June 2018.