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Judicial Council completes Recommended Standards for interpreters working in court settings

October 2017, saw the launch of the Recommended National Standards for Working with Interpreters in Courts and Tribunals, published by the Judicial Council on Cultural Diversity (JCCD).

This published work is the result of two years of research and consultation, prepared by a JCCD appointed specialist committee.

Carla Wilshire (CEO, Migration Council Australia), Chief Justice Chris Kourakis (SA), Justice Melissa Perry, (Chair, Specialist Committee), Mark Painting (CEO, NAATI), Chief Justice Wayne Martin (Chair, JCCD),  Dr Rocco Loiacono (AUSIT)The JCCD is an advisory body formed to assist the Australian courts, judicial officers and administrators, to positively respond to issues cultural diversity in Australia. The Council is composed of members drawn predominately from the judiciary, with select representation from legal and community bodies. Members are selected to balance gender, court level and represent all Australian geographical areas. Many judicial officers serving the council come from diverse cultural backgrounds.

Access to fair and equal justice is a legal and moral right in Australia, with “equality before the law,” a principle of our legal system. As Australian proceedings are normally conducted in English, it has long been understood that people from non English-speaking backgrounds should be given access to interpreters, ensuring they receive fair treatment in formal processes. The system should be fair to everyone, regardless of social status, education, disability, or cultural background.

However experience in this sector indicates that there are common problems encountered with interpreters in the court system, such as;

  • A lack of clarity about who is responsible for engaging an interpreter
  • A lack of training by court officials in assessing the need to engage interpreters
  • Interpreters and translators who may not have a suitable standard of training and qualifications.

The Hon. Wayne Martin AC, Chief Justice of Western Australia, and current Chair of the JCCD explained the reasoning behind the project, in an address to the Hellenic Australian Lawyers Association, Brisbane, 10 June 2016. 

“In many areas, it will be clear beyond argument that cultural and/or linguistic differences place persons at a significant disadvantage in relation to the justice system generally,” Chief Justice Martin said.

Research conducted by the JCCD into improving access for women facing cultural and linguistic challenges in the Australian Courts system, confirmed that “the effective use of interpreters by courts and tribunals shows significant deficiencies in current practices and procedures,” said Chief Justice Martin.

A JCCD report on Migrant and Refugee Women’s Experience of the Courts identified communication barriers as an obstacle preventing women from Aboriginal and Torres Strait Islander communities, migrants and refugees, from interacting effectively with the courts.

The JCCD commenced a project intended to address the issues revealed by the research, and provide officers of the court, and interpreters, with a set of standards they can use as a guide to best practice.

The final work produced out of this project is the Recommended National Standards for Working with Interpreters in Courts and Tribunals, available from the resources section of the JCCD website and directly here.

Cover of the Recommended National standards for working with Interpreters in Courts and TribunalsProfessor Sandra Hale, Professor of Interpreting and Translation, University of New South Wales and National President of AUSiT, was engaged as an expert by the JCCD, along with Hon Dean Mildren AM FRD QC, formerly a judge of the Supreme Court of the Northern Territory. The project committee included Mark Painting, CEO of NAATI, Mrs Collen Rosas, Director of the Aboriginal Interpreting Services, and Ms Magdalena Rowan, Senior Lecturer, Interpreting and Translating, TAFE SA.

“Interpreters play an essential role in the administration of justice in our linguistically diverse society,” write the authors of the National Standards.  

Justice Melissa Perry of the Federal Court of Australia, who chaired the project committee, spoke at the official launch about the humanitarian and legal rights to equality before tribunals, courts and the right to a fair trial. 

“The difficulties of communication may be overlaid by other complex barriers to justice.  For example, in the case of our indigenous peoples, factors such as intergenerational trauma and experiences of discrimination, racism and poverty impact on indigenous perspectives of the justice system. Cultural concerns may add further degrees of complexity,” Justice Perry said.

“The consequences of a failure to meet the legal standard may lead to an invalid administrative decision or a miscarriage of justice with consequential delays and economic and social costs.  For example, the State may have to bear the cost of a retrial, while the accused and witnesses are put through the trauma of a rehearing.”

“For those with no or limited proficiency in the language of our courts and tribunals, interpreters therefore make their participation possible, and play an essential role in ensuring that justice is done and can be seen to be done in civil and criminal matters,” she said.

The standards are not enforceable on any particular court but seen as a guide to best practice in the judicial system. For example in June 2017, the Queensland Courts adopted a process to fast-track access to interpreters in Family Violence situations.

The project committee explain that it is necessary to build flexibility into the recommendations. This will allow for situations where there are shortages of qualified interpreters in a particular language. For this reason, the Recommended Standards have been designed with a set of minimum standards, and optimum standards that can be applied when there is a pool of qualified interpreters available. The standards can be implemented progressively as capacity allows.

The Recommended National Standards are an in-depth tool for court officials to use; in assessing when to engage an interpreter, how to engage one, and what to expect from them in a court setting.

It also prescribes standards for interpreters such as; impartiality, confidentiality, duty to the court and the process of carrying out justice, duty of accuracy and duty of competency.

The Assistant Minister for Social Services and Multicultural Affairs, Senator Zed Seselja, spoke at the recent launch about Australia’s place in the world as a diverse, prosperous and socially cohesive nation, with nearly half the population born overseas or with at least one parent who was.

“The need for qualified interpreters and translators is vital – from helping people with commercial transactions to accurately conveying critical information in a hospital intensive care setting or helping “people understand complex legal documents,” Senator Seselja said.

“Engaging appropriately qualified interpreters in courts goes a long way to ensuring procedural fairness by allowing each court user, including victims and witnesses, to understand and to be understood,” he said.

The launch of the Recommended National Standards for Working with Interpreters in Courts and Tribunalscoincided with the release of the JCCD’s other project; the National Framework to improve accessibility to Australian Courts for Aboriginal and Torres Strait Islander women and migrant and refugee women.

The JCCD and project committee is grateful for the support and assistance from the Migration Council of Australia (MCA).

(author: Jenna Gray, 31 Oct 2017)