Annotated Standards: Recommended Standards for Courts
Standard 1 – Model Rules
All Australian courts and tribunals should so far as possible adopt the Model Rules and the Practice Note that give effect to these Standards.
English is the language in which proceedings in Australian courts and tribunals are conducted.
However, where a person before the courts has limited proficiency in English, the provision of interpreting services is necessary in order to meet the requirements of procedural fairness and ensure a fair trial in accordance with fundamental human rights. As such, the participation of competent interpreters and translators across the range of languages spoken in Australia is key to ensuring equal access to justice for all members of Australian society and for the administration of justice.
Australia’s increasingly linguistically diverse society means that proactive steps are essential in particular to ensure the availability and competency of interpreters in languages other than English within the specialised environment of courts and tribunals and to promote an understanding of the proper role of interpreters in the administration of justice. Implementation of these Standards will be a critical component in achieving these goals in the short and long term.
In providing that Australian courts and tribunals “should so far as possible adopt the Model Rules and Practice Note”, the Standards recognise that practices may vary between and within jurisdictions as to such matters as who is responsible for engaging an interpreter. For example, Model Rule 1.4 is drafted on the assumption that the court in civil cases relies on the parties to engage an interpreter. However, in some jurisdictions the court assumes that responsibility and the Model Rules should be adapted accordingly.
Standard 2 – Proceedings generally to be conducted in English
Proceedings in Australian courts and tribunals are generally to be conducted in English.
While English is the most commonly spoken language in Australia, it is estimated that 21 per cent of Australian residents (4.9 million people) use a language other than English at home.8 Further, 3.5 per cent (819,922 people) of those who speak another language at home have reported that they speak English poorly or not at all.9
In addition, the 2016 Census found that some 60,000 people reported speaking an Aboriginal or Torres Strait Islander language at home, and 15 per cent reported not speaking English well or at all.10 Approximately 10,000 Deaf people use Auslan as a first language.11
These figures provide some indication of the proportion of people coming before Australian courts and tribunals who may require language assistance to understand and be understood. Misunderstandings and knowledge gaps may also occur where English is not a person’s first language, depending upon their proficiency. Further, people who have learnt English later in life may lack sufficient proficiency to understand complex sentences used to communicate rights or cautions, legal terms, or English spoken at fast conversational pace.12
Standard 3 – Engagement of interpreters to ensure procedural fairness
Courts and tribunals must accommodate the language needs of parties and witnesses with limited English proficiency in accordance with the requirements of procedural fairness.
While a number of parties can be involved in identifying the need for and arranging for the provision of interpreting services, the obligation ultimately rests with the court/tribunal to ensure a fair hearing.
In criminal matters, the accused has a right to an interpreter. From a practical perspective, in general the legal representative for the defendant will identify the need for an interpreter for the defendant and their witnesses. Nonetheless the judicial officer must ensure that the accused understands English before the accused enters a plea. In cases of any doubt, the trial should not proceed until the judicial officer is satisfied that the accused has a sufficient understanding to plead to the charge and instruct their legal representatives. Responsibility for the provision of an interpreter may need to be discussed between the prosecution, the defence and any relevant agency, such as Witness Assistance Services.
In cases where the court/tribunal is exercising its protective jurisdiction and a party has limited English proficiency, the court/tribunal should be responsible for providing an interpreter. Further, while the position varies between the different jurisdictions, some courts/tribunals have assumed responsibility for engaging an interpreter where required in all or certain kinds of cases. As a result, mechanisms need to exist for the timely identification of parties and witnesses with limited English proficiency so as to facilitate the engagement of an interpreter and to take account of any cultural or other relevant considerations in the choice of interpreter. Where necessary, court/tribunal staff must be able to administer the four-part English language proficiency test to determine whether a person requires an interpreter: see Annexure 4.
Courts/tribunals are not responsible for the engagement of interpreters for language assistance outside court/tribunal attendances. Those arrangements are made by others, such as the police and legal representatives. However, courts/tribunals should be alert to inquire whether persons requiring language assistance in court have also been afforded language assistance by police, counsel and other parties.13
Standard 4 – Provision of information to the public about the availability of interpreters
Basic information about interpreters in the legal system, in languages commonly used by court and tribunal users, should be readily available on court and tribunal websites and in hard copy from the relevant registries. This information should include the contact details of organisations through which interpreters may be engaged and the role of an interpreter as an officer of the court or tribunal.
Courts and tribunals should explain in the basic information provided to court or tribunal users that the phrase “officer of the court or tribunal” in relation to an interpreter means a person who owes to the court paramount duties of accuracy and impartiality in the office of interpreter which override any duty that person may have to any party to the proceedings, even if that person is engaged directly by that party or their legal representatives.
It is intended that the status of the interpreter as an officer of the court or tribunal will enhance and promote the independence of the interpreter, as well as acknowledging their vital role in the courtroom.
Information about the circumstances in which a court or tribunal may provide an interpreter should be published on court and tribunal websites and be available in hard copy from the relevant registries.
If a court or tribunal is responsible for the engagement of an interpreter in some or all kinds of matters, an application form for the provision of an interpreter in languages commonly spoken by court and tribunal users should be readily available online and in hard copy from the relevant registries. The form should make provision for a person to request that particular cultural or other considerations are taken into account in selecting an interpreter.
Many court and tribunal users may not be aware that they are able to access an interpreter to assist them. A form allowing court and tribunal users to request an interpreter for themselves or a witness should be presented in plain English and in commonly spoken languages. The form should be located in a prominent location on the court or tribunal’s website and in hard copy at the Registry so that court users with limited English literacy do not have difficulty finding this information. The form should also include a space for court users to note any interpreter(s) that they do not want, for example for cultural, confidentiality or other reasons.
Standard 5 – Training of Judicial Officers and Court and Tribunal Staff
Judicial officers and court and tribunal staff should be familiar with the role of the interpreter as an officer of the court or tribunal, in that they owe paramount duties to the court or tribunal.
Training should be provided for judicial officers on assessing the need for interpreters and working with interpreters in accordance with these Standards and the Model Rules and Practice Note as enacted in their jurisdiction.
Training should be provided for court and tribunal staff on assessing the need for interpreters and working with interpreters in accordance with these Standards.
Standard 6 – Engaging an interpreter in accordance with these Standards
Where an interpreter is engaged by the court or tribunal, the court or tribunal should endeavour to ensure that the interpreter is selected in accordance with Standard 11 of these Standards.
In the selection of an interpreter, courts and tribunals should ensure the interpreter is appropriate, taking into account any cultural and other reasonable concerns relevant to the proceedings.
Standard 7 – Budget for interpreters
If the court or tribunal is responsible for the engagement of interpreters either directly or through an interpreting service, court or tribunal budget allocations should provide and support interpreting services to court and tribunal users with limited English proficiency in accordance with these Standards and the Model Rules and the Practice Note.
Courts should have dedicated adequate budget lines to provide and support interpreting services to court users with limited English proficiency, or have appropriate arrangements with an agency of government for the provision of the necessary resources
The Model Rules affirm that all interpreters are officers of the court or tribunal, whose duties are to interpret accurately for all parties so they can communicate with each other, irrespective of whether the interpreter is engaged by the court/tribunal or by the parties.
Standard 8 – Coordinating the engagement of interpreters
The circumstances in which a court or tribunal, rather than the parties and their legal representatives, will engage an interpreter on behalf of a limited English proficiency speaking person will vary depending on the practice of that court or tribunal.
Nothing in the Standards is intended to alter those arrangements or to shift responsibility for organising interpreter services from the parties and their legal representatives to the court or tribunal. However, Standard 8 is relevant in circumstances where the court or tribunal engages an interpreter on behalf of a limited English proficiency speaking person.
This Standard applies where the court or tribunal is responsible for the engagement of the interpreter either directly or through an interpreting service.
A specific member(s) of registry staff should be designated as having responsibility for coordinating interpreting arrangements.
It is envisaged that the responsibility of the designated officer or officers would embrace:
- Being the central point of contact for all interpreting matters;
- Coordinating booking requests, including allocating times to ensure interpreters are briefed;
- Administering tests of limited English proficiency if required;
- Assuming responsibility for the welfare and safety of interpreters, including ascertaining whether a debriefing is necessary;
- Following up with the court or tribunal to monitor whether there were any concerns about the interpreter’s ethics, competency or behaviour and, if so, to determine an appropriate response;
- Reporting to NAATI when an interpreter was not available and the court or tribunal made a decision to adjourn or stay a case, or to proceed with a less qualified interpreter.
Courts and tribunals should implement a booking system for interpreters to ensure that interpreting services are used efficiently and with appropriate consideration to providing interpreters with as much notice as possible in relation to the assignment of work.
In order to increase the efficiency and quality of interpreting, courts and tribunals should:
- Call interpreter cases promptly so the interpreter can move on to other hearing rooms; and
- Schedule interpreter cases in the same hearing room on specific days of the week or at specific times of the day.
In areas where there are high day-to-day requirements for interpreting, courts and tribunals may “roster on” interpreters who are booked to be available half or a full day in advance of immediate customer demand (as, for example, is currently the case Aboriginal and Torres Strait Islander language interpreters in the Northern Territory, and for Vietnamese interpreters in a Melbourne Magistrates Court).
Ways to anticipate need for interpreters
Courts and tribunals requiring interpreters frequently should analyse language needs among users in order to improve efficiencies in the use of interpreter services. For example, census data relevant to a court or tribunal’s jurisdiction may be indicative of the likely demand for interpreters in particular languages. To develop more specific information, registry staff could undertake snapshot surveys, one day a fortnight, inquiring of persons using registry services on that day what language they speak at home and whether they feel that they have trouble understanding what lawyers and service providers say to them. This information could assist in identifying the main areas of likely need.
Courts and tribunals should include data elements in case management systems to indicate whether litigants or witnesses need interpreters and clearly mark case files when a person requires an interpreter.
Booking information to be provided to interpreters
Detailed booking and briefing information should be provided to interpreters, preferably through an online interpreters’ portal (see Optimal Standard 4). Ideally, a brief should be prepared for every case where an interpreter will be booked. The brief should be made available to the interpreter when booking their services, potentially through an interpreters’ portal.
The following material should be provided on booking an interpreter:
- Name(s) of parties;
- Type of case;
- Type of charge(s) or claim;
- Type of appearance;
- Major topics to be discussed (if known);
- List of technical or specialised terms likely to be used;
- Address of the court or tribunal;
- Contact person on arrival;
- Notice of requirement to produce evidence of their qualification(s) and certification;
- Interpreter’s Code of Conduct relevant to the court or tribunal, including information on confidentiality;
- Length of time for which the interpreter is booked.
Any confidential documents that are provided to the interpreter as part of the brief must be returned to the court or tribunal.
It is preferable that the interpreter be asked about their availability when setting the next date. If a case needs to be adjourned, it is recommended that the court or tribunal book the same interpreter (if satisfied with their performance), for consistency and experience.
To maximise the ability of interpreting services to provide an appropriate interpreter for a particular case, courts or tribunals seeking to engage the services of the interpreter should give as much notice as possible.
Early consideration to engaging an interpreter will facilitate the process of engaging an interpreter in line with the tiered approach in Standard 11 and compliance with any requests for cultural and other relevant considerations as to the choice of interpreter. It also better allows for the interpreter’s needs to be considered in preparing for the hearing and for appropriate arrangements to be made with respect to the process by which interpreting is to occur.
The following timeframes are suggested:
- For contested matters provide at least 4 weeks notice;
- For other matters, where possible, provide at least 2 weeks notice.
Where Auslan interpreters are required to interpret for a deaf party or witness, they should be engaged in tandem with two (or more) interpreters, given the simultaneous mode of their work and risk of occupational injury.
Many Auslan interpreters use a form of ‘relay interpreting’. Relay interpreting consists of one interpreter interpreting from language A to language B and the other interpreter interpreting from language B to language C.14 For example, in a case where a witness speaks a dialect of Mandarin which the Mandarin interpreter does not understand, the Mandarin interpreter could be assisted by a Suitable Person who speaks both the witness’ dialect as well as Mandarin. The Suitable Person could interpret the witness’ evidence into Mandarin, which the interpreter then interprets into English.15
Given Auslan is the standard interpreting method used within Australia only, participants in a hearing room situation may be more familiar with alternate deaf interpreting methodologies. A version of relay interpreting is commonly used with deaf persons whose Auslan usage is limited or idiosyncratic, or who may use a foreign-signed language. Where a deaf person does not use Auslan, having both deaf and Auslan interpreters may be necessary.
Deaf Interpreters are native or native-like users of Auslan and understand the complex cultural experience of growing up deaf.16 They are able to adapt their sign language to accommodate a broad range of behavioural and linguistic traits specific to the deaf community. Deaf Interpreters with specialised communication skills work alongside hearing Auslan-English interpreters, bridging gaps in the transfer of information between English, Auslan and the deaf party’s foreign signed language or non-standard Auslan.
Standard 9 – Support for interpreters
Courts and tribunals should provide adequate and appropriate working conditions and remuneration to support interpreters in the performance of their duties to the best of their ability.
As with all other professions, interpreters require adequate working conditions in order to perform their duties to the best of their ability. Poor working conditions can lead to less than satisfactory interpreting results.
Regardless of the circumstances (for example, when interpreters are hired by different parties rather than by the court or tribunal), when more than one interpreter is employed, adversarial interpreting should be avoided. This practice is becoming more common in different jurisdictions in various countries in order to ascertain the quality of the other party’s interpreter. In such circumstances, instead of working together as a team, interpreters work in opposition and competition with each other. This practice is counterproductive with research showing that when interpreters are being monitored in this way, their performance can decline.17
Interpreters should be remunerated by reference to a scale of fees which reflect their level of qualifications and NAATI certification, skill and experience. Interpreters should also be remunerated for preparation time, travelling time, travel and accommodation costs where relevant, and for the time contracted – regardless of whether the matter finishes earlier.
Remuneration of interpreters is sometimes controlled by regulations,18 but is otherwise determined by the contractual terms of the interpreter’s engagement. In some jurisdictions, governments have entered into multi-year agreements with interpreting service companies, including fee rates. Where interpreters can only be engaged through an interpreter service, the individual fees may be subject to control by that service, which may or may not be reviewable by an industrial tribunal.
Courts and tribunals should agree to a scale of fees for interpreter costs and provide appropriate remuneration to the interpreter commensurate with their level of qualifications and NAATI certification, skill and experience. The rates should reflect a fair reward for the time and skill of the interpreter concerned. Where the fee is payable to an interpreter service, the rates should reflect the fact that the service will be entitled to charge for its overheads in engaging the interpreter. Professionals Australia has developed a scale of minimum fees to give a benchmark of costs to assist parties in budgeting and negotiating rates of pay for interpreters. This is available at http://www.professionalsaustralia.org.au/translators-interpreters/recommended-rates/
Courts and tribunals should give consideration to differential rates depending on the qualifications and level of NAATI certification of the interpreter, with a discretion to allow a higher or lesser amount than the minimum rates in any circumstances which appear to be just and reasonable. There is a real concern that many qualified interpreters leave the profession due to poor remuneration and inadequate working conditions.
Interpreters should be remunerated for preparation time, travelling time, travel and accommodation costs where relevant, and for the time contracted – regardless of whether the matter finishes earlier. There should be a minimum payment provision included in contractual terms in case the services of the interpreter are only required for a very short period of time.
For the purposes of assessment or taxation of legal costs the Model Practice Note suggests that a court can indicate that the rate of remuneration set by an organisation such as Professionals Australia will be accepted by the court as the minimum rate.
In order to provide practical support for interpreters and protect their independence, courts and tribunals should provide interpreters with a dedicated space where they can wait until called, leave their belongings, prepare materials, and be briefed and debriefed. The room should be close to the hearing rooms and be equipped with wireless internet and/or a computer with internet access, for interpreters to use online resources such as dictionaries and terminology banks to prepare for their cases.
Having an interpreters’ room avoids having the interpreter sitting with a party or witness in the waiting room, which can potentially compromise the interpreter’s ethical obligations and independent role as an officer of the court or tribunal.
In the hearing room, courts and tribunals should provide interpreters with a dedicated location where they can see all parties in the room. Where a working station or booth is not feasible, interpreters should be provided with a chair and table and sufficient room to work, together with any necessary equipment such as, for example, headphones.
In the hearing room, courts and tribunals should provide interpreters with a dedicated location where they can hear all parties and have a clear view of all persons speaking. In addition, the safety and professional distance of interpreters should be a primary consideration when deciding on the placement of interpreters. Auslan interpreters can give advice as to the optimal standing positions to enable optimal visual access to and from signing deaf parties and/or witnesses.
Where a working station or booth is not feasible, interpreters should be provided with a chair, a table to write on, and sufficient room to work, to store dictionaries and glossaries, and access to a jug of water and glass.
Interpreters should have access to the internet to connect to online dictionaries and terminology banks. Smart devices such as tablets and smart phones should be permitted, as they are basic tools and enable access to reference material for interpreters. Similarly, interpreters should be permitted to take notes during consecutive interpreting.
The taking of evidence which is interpreted should be audio recorded or, in cases where an Auslan interpreter is engaged, video recorded, so as to protect the parties’ rights if an issue should arise at trial or on appeal as to the accuracy of any part of the interpreted evidence.
Telephone interpreting and interpreting using audio-visual links
Where an interpreter is unable to be present in the hearing room, audio-visual links should be preferred over telephone interpreting whenever possible. Interpreting court and tribunal proceedings by telephone can lower the accuracy of the interpreting compared to face-to-face or video hearings.19 Telephone interpreting should only be used with appropriate equipment, and for short proceedings or meetings. Best practice is that all parties should have a high-quality headset and the interpreter should have separate dual volume control and amplification. Where telephone interpreting is necessary, these Standards should still be complied with, including briefing the interpreter where appropriate and the scale of remuneration for their work in the proceedings.
The use of audio-visual links to provide interpreting services should only be considered when the available equipment is of sufficient quality, and is appropriately configured, so as to provide adequate sound and vision for all parties.
The use of teleconferences and audio-visual links for hearings has increased, and it may be expected that the use of such technology may continue, at least for some kinds of hearings. Annexure 6 provides guidelines for working with interpreters where audio-visual links are used in various hearing contexts.
The frequency of the breaks will depend on the intensity of the pace and content of the matter, on whether there are two or more interpreters alternating, on the mode of interpreting (either consecutive or simultaneous), whether the interpreting is conducted remotely or on site, and on the competence of the interpreter. The judicial officer should ask interpreters if they need a break every 45 minutes for spoken language interpreters, and every 20 minutes for signed language interpreters. More regular breaks are needed for simultaneous interpreting and for remote interpreting. The judicial officer should encourage interpreters to always notify the court or tribunal if they need a break at any time during the proceedings. The court or tribunal should adjourn more frequently whenever an interpreter has been called upon to interpret for long periods.
It is important that the need for interpreters to take breaks is taken into account in considering the length of time for which the interpreter’s services will be required and in estimating the likely time required for the hearing overall. Paragraph (10) of the Practice Note recommends that the time estimate for the taking of evidence with an interpreter using the consecutive mode be two and a half times the estimated time that would be required for that witness to give their evidence in English. That recommendation has taken into account the time required for breaks, which should be at least 15 minutes for every 45 minutes worked.
Where the court or tribunal is responsible for the engagement of interpreters directly or through an interpreting service, the court or tribunal shall provide counselling and debriefing for any distress or trauma suffered by the interpreters arising from their performance as officers of the court or tribunal, in that they owe paramount duties to the court or tribunal, unless such counselling and debriefing is already provided by the interpreting service provider.
Debriefing is crucial for the health of the interpreter. Research has shown that interpreters are vulnerable to vicarious trauma and secondary stress when interpreting sensitive or distressing material.20 The requirement to use first person in conveying content may increase the interpreter’s risk of experiencing vicarious trauma.21 Moreover some interpreters will have personal histories of trauma and may have their own traumatic experiences triggered by the interpretation of another person’s experience. For example, post-traumatic stress disorder was reported in interpreters associated with the South African Truth and Reconciliation Commission. Others have found that interpreters who share the same country of origin as refugees for whom they interpret may be more vulnerable to psychiatric disorders. In another study, feelings of distress among interpreters correlated with the number of sessions where they had to interpret experiences of violence.22
At present in Australia interpreters are provided with little or no support to help them cope with such situations. Some courts already offer counselling to jurors. The Standards recommend that courts and tribunals provide debriefing and, if necessary, pay for counselling for the interpreter who has performed their functions as an officer of the court or tribunal. This issue merits further investigation to determine how courts and tribunals can better support interpreters’ occupational health and safety and thereby also better ensure that a pool of available and competent interpreters is available to assist in matters where such risks are heightened.
Where the court or tribunal is responsible for the engagement of interpreters directly or through an interpreting service, the court or tribunal should implement procedures for the provision of feedback to and from interpreters on interpreting performance and associated matters, either coordinated through the interpreter service or through the court or tribunal.
It is important for interpreters to receive feedback on their performance from those who use their services. It is also important for interpreters to provide feedback to the court or tribunal on whether their professional needs were met and on any other aspect of their assignment, including the need for debriefing and support if they feel they are suffering from secondary stress.
All parties are encouraged to provide feedback about the service provided by interpreters in a court or tribunal. Where relevant, this should be provided to the interpreter service. The court or tribunal’s contract with the interpreting service should note that comments made in good faith will be protected from civil suit. Alternatively, a feedback mechanism could be incorporated into the interpreter portal, where all parties could provide feedback on a voluntary basis.
Courts and tribunals should advise NAATI when they have been unable to secure the services of an interpreter.
Interpreter shortages are a matter of serious concern. At present, there is no coordinating body to which courts and tribunals can report where they have been unable to secure the services of an interpreter. This impedes the ability of the sector to respond to shortfalls between supply and demand.
NAATI has agreed to serve as a centralised repository of information about the unavailability of interpreters in the legal system. Courts and tribunals should email email@example.com explaining the language required, the duration of the interpreting job, the efforts made to secure the interpreter and the consequences of not being able to find an interpreter (e.g. short adjournment, long adjournment, or stay of proceedings).
This data will also assist in reviewing the Standards.
Court and tribunal procedures should be adapted to ensure that the most efficient use is made of the interpreter’s time and skills. As outlined in rule 8.1 in the Model Rules, the court or tribunal may at any time make directions regarding a range of issues concerning the retainer and role of the interpreter in proceedings.
Model Rule 8.1 lists various matters on which directions concerning the provision of interpreting services may be made. The list of issues in Rule 9.1 is intended to assist parties, their legal representatives and the court or tribunal to ensure that all relevant matters are considered and considered at an early stage of the proceedings. This does not mean that the court or tribunal will in fact make directions on all of the matters identified in Rule 9.1; nor that it would do so without first hearing from the legal representatives or the parties (if unrepresented): see also Standard 20.2 (interpreters must comply with any direction of the court). Rule 9.1 is not intended to be exhaustive of the matters on which directions affecting interpreters may be made. It is envisaged that the parties and their legal representatives would in appropriate cases speak with the proposed interpreter or interpreting service provider in advance of a directions hearing to ascertain their needs and discuss how they may be accommodated.
Standard 10 – Assessing the need for an interpreter
In determining whether a person requires an interpreter, courts and tribunals should apply the four-part test for determining need for an interpreter as outlined in Annexure 4.
An interpreter should be engaged in any proceedings where a party who has difficulty communicating in, or understanding, English in the context of a hearing is required to appear in the hearing. Courts and tribunals should also take steps to ascertain whether persons are deaf or hard of hearing or have other impairments that affect their ability to understand and to be understood.
The preferred option is to find an interpreter who can interpret between the person’s first or dominant language and English. However, in some instances the limited English proficiency speaking party may speak several languages with considerable proficiency. This may be the situation with speakers of some Aboriginal or Torres Strait Islander languages in Australia and with speakers from African and West Asian countries characterised by high levels of linguistic diversity. Sometimes it is difficult to secure the services of any interpreter in the person’s first or dominant language but possible to find an interpreter for a second or third language in which the person is also proficient. In such cases, a team interpreting approach using relay can be considered, subject to the parties consenting to this arrangement and careful monitoring.
Standard 11 – Engaging an interpreter
This Standard applies where the court or tribunal is responsible for the engagement of the interpreter either directly or through an interpreting service, or required to determine whether or not a particular individual should be permitted to carry out the office of interpreter.
Courts and tribunals should prefer to engage a Qualified Interpreter. Where a Qualified Interpreter cannot be found, a Suitable Person may be engaged instead. Where possible, the following order of preference for an interpreter’s level of certification and qualification should be followed:
- Certified Specialist Legal Interpreter
- Certified Interpreter
- Certified Provisional Interpreter
- Recognised Practicing Interpreter
- Suitable Person
When engaging an interpreter, whether a Qualified Interpreter or otherwise, the following should also be taken into account:
- the extent and level to which the person has pursued formal education and interpreter training, especially legal interpreting training;
- the level of their NAATI certification;
- whether or not the person is a current member of AUSIT, ASLIA or other recognised State or Territory based association; and
- any experience interpreting in court or tribunal, including the nature of that work.
The current interpreter qualifications are listed and described in Annexure 2. In Australia, interpreters have a wide variety of certifications, qualifications, in-service training, experience and engagement with professional associations. As a result, some practitioners are trained and certified, some are certified but not trained, and some are trained but not certified. In any case, only those with appropriate training and/or certification should be considered interpreters, and not, for example, bilinguals with no independent verification of interpreting competence or English and other language proficiency.
Research demonstrates the superior performance of trained interpreters over untrained bilinguals.23 Conversely, incompetent interpreting can lead to appeals, increase the cost of the justice process and be productive of delay.24
While there are languages where practitioners meet the benchmarks contained in Standard 11, there are many languages where there are no practitioners in Australia who meet those Standards. In reality there is a very limited range and availability of Certified Interpreters and, in some languages, even of Certified Provisional Interpreters.
This complexity and variety reflects Australia’s great cultural diversity. The pool of certified, trained and experienced interpreters also varies considerably between languages. Differences can reflect the size of the language-cultural group in Australia, the demand for interpreting in that language and socio-historical factors associated with people from that language group.
Australia’s linguistic diversity necessitates a practical approach to establishing standards for interpreting in Australian courts and tribunals, while providing mechanisms to continue the work of the justice system.
These Standards set out standards by language, based on the number of available interpreters at Certified and other levels. It is based on the principle that where NAATI Certified interpreters are reasonably available, they should be employed. However, where Certified or Certified Provisional interpreters are not available, the Standards recommend that courts and tribunals adopt a team interpreting approach where several people come together to perform the task at the required level.
The Standards are organised in such a way as to provide increased incentives for practitioners to become NAATI Certified and to pursue formal education and training and continuous professional development and education.
The Standards divide25 all languages in Australia into four tiers, on the basis of NAATI data on the number and level of Certified practitioners. The tiers recognise the current supply of interpreters and are organised in such a way that courts should be able to find qualified interpreters provided they make sufficient effort to do so.
Standards 11.4 and 11.5 detail the preferential order of interpreting certifications that courts and tribunals should seek to pursue when engaging an interpreter for each Tier. Generally speaking, however, courts and tribunals should prefer interpreters in the following order of certification level:
- Certified Specialist Legal Interpreter
- Certified Interpreter
- Certified Provisional Interpreter
- Recognised Practising Interpreter
For languages in Tier A, only a Certified Interpreter, or a Certified Specialist Interpreter if available, should be engaged, having regard to any cultural and other reasonable concerns.
Tier A comprises 11 languages, Tier B 17 languages, Tier C 50 languages, and Tier D all other languages. Each tier identifies different Standards for court interpreters and particular steps courts should take to enable a fair trial. For example, in relation to a language categorised as Tier A, courts and parties can be assured that, with sufficient effort, they can obtain the services of a Certified interpreter. Therefore, there should generally be no reason why an interpreter of lesser standard should ever be used.
Tiers B, C and D identify Standards for languages where there are few or no Certified interpreters for that language, as well as additional measures courts and tribunals should take to ensure procedural fairness. Courts and tribunals should make every reasonable effort to engage the most qualified interpreters, including consulting interpreters about their available dates when setting the date for the hearing or trial, adjourning if no interpreter is available, flying an interpreter in from another state or using video link before considering the engagement of an unqualified and/or non-certified interpreter. Non-certified and unqualified bilinguals should only be engaged when there are no qualified or Certified interpreters in existence in that language combination.
The Standards identify reasonable adjustments courts and tribunals can make to share the communication load between all parties including the interpreter.
Tier A comprises 11 languages (10 spoken international languages and Auslan) where there are at least 40 Certified Interpreters and possibly some Certified Legal Interpreters.
The Tier A languages are: Arabic, Auslan, Cantonese, Greek, Italian, Japanese, Mandarin, Persian, Spanish, Turkish and Vietnamese.
Courts and tribunals should never employ an interpreter of lesser standard than NAATI Certified Interpreter for these Tier A languages. Moreover, preference should be given to interpreters who have also undertaken tertiary qualifications in interpreting and are a current member of AUSIT or ASLIA or other recognised State or Territory based professional association requiring adherence to a code of ethics and/or standards, where they are available.
To meet the standard required by Standard 11, courts and tribunals may need to consider deferring a trial or hearing, paying for the interpreter to travel from another state/territory or using video conferencing facilities so that the interpreting can be conducted remotely.
For some of these languages, there may well be interpreters who have completed tertiary studies but are not certified by NAATI at Certified Interpreter level. In such instances, a judicial officer can deem that an interpreter meets the standards for a Tier A interpreter if the interpreter can demonstrate they have a degree in interpreting and translating or a TAFE Advanced Diploma in Interpreting and as part of that course of study completed units in legal interpreting.
Table 1.1 Tier A
|Language||No. Interpreters with some certification (as of February 2022)|
For all other tiers, if a Certified Interpreter is not reasonably available, then, subject to cultural and other reasonable concerns:
- For languages in Tier B:
- a Certified Provisional Interpreter should be engaged if there is one available; or
- if a Certified Provisional Interpreter is not reasonably available, the judicial officer may grant leave for a person to carry out the office of interpreter in accordance with Model Rule 4.2
Tier B comprises 17 spoken international languages where there are between 10 and 40 Certified Interpreters and a significant number (>30) of Certified Provisional Interpreters.
The Tier B languages are Bangla, Bosnian, Croatian, Dari, French, German, Hindi, Hungarian, Indonesian, Macedonian, Polish, Portuguese, Russian, Serbian, Sinhalese, Tamil, and Thai.
For these 17 Tier B languages, Certified level is preferred but courts should never employ an interpreter of lesser standard than a NAATI Certified Provisional Interpreter. Within Tier B, preference should be given to Certified level interpreters, interpreters who have undertaken tertiary education/training in interpreting, and who are a current member of AUSIT or ASLIA.
Where larger numbers of interpreters (five or more) of Tier B languages have been certified at NAATI Certified Interpreter level, courts and tribunals should make every effort to engage the services of a Certified Interpreter, including if necessary by considering deferring the trial or hearing, paying for the interpreter to travel from another state or by using video conferencing facilities so that the interpreting can be conducted remotely. However, it is acknowledged that there may be very limited availability of interpreters in these language combinations in a particular State or Territory.
For some Tier B languages, there may well be interpreters who have completed relevant tertiary studies but are not certified by NAATI at Certified or Certified Provisional level. In such instances, a judicial officer can deem that an interpreter meets the standards for a Tier B interpreter if the interpreter can show they have a degree in Interpreting, in Interpreting and Translating, or a TAFE Diploma in Interpreting and Translating and undertook units in legal interpreting as part of that course.
Table 1.2 Tier B
|Language||No. Interpreters with some certification (as of June 2021)|
For languages in Tier C:
i. a Certified Interpreter should be engaged if one is available; or
ii. if a Certified Provisional Interpreter is not reasonably available, the judicial officer may grant leave for a person to carry out the office of interpreter in accordance with Model Rule 4.2
Tier C comprises 50 languages where there are very few (<10), if any, Certified Interpreters, but sufficient numbers (10-200) of Certified Provisional Interpreters available relative to the population of speakers of those languages. This includes several Australian Indigenous languages.
For the languages in Tier C, given that there are very few, if any, Certified Interpreters currently available, courts and tribunals should seek to employ a Certified Provisional Interpreter. Acknowledging that an intensive search for an interpreter may need to occur, this should be achievable in the majority of cases.
Before commencing with the assistance of a Certified Provisional Interpreter, the judicial officer should ascertain the interpreter’s academic qualifications and the nature of their experience of interpreting in legal environments, as well as take steps to determine whether they are confident that the interpreter understands the key legal concepts that are likely to be discussed during the proceeding.
If the judicial officer has any concern that the Certified Provisional Interpreter has insufficient skills, the judicial officer should adjourn the proceeding until a Certified level mentor is appointed to support the Certified Provisional Interpreter (see discussion following regarding professional mentors).
For languages in Tier D:
i. a Certified Provisional Interpreter should be engaged if there is one available; or
ii. if a Certified Provisional Interpreter is not reasonably available, a Recognised Practising Interpreter should be engaged if there is one available; or
iii. if neither a Certified Provisional Interpreter nor Recognised Practising Interpreter is reasonably available, the judicial officer may grant leave for a person to carry out the office of interpreter in accordance with Model Rule 4.2
Tier D comprises all of the other 200 or so languages spoken in Australia, both international and Indigenous languages.
Recognised Practising Interpreters do exist for many of these languages. Whilst they are not certified, this credential does require individuals to demonstrate English proficiency, ethical competence, intercultural competence, and completion of introductory interpreter training. Individuals holding this credential are also required to engage in continuing professional development.
For Tier D languages, one of three main strategies should be considered:
- a qualified interpreter could be employed from overseas subject to a voir dire hearing on competence;
- a team interpreting approach could be adopted using bilinguals and a qualified interpreter in another language as a mentor; or
- a “relay” approach could be used – however, this is the least preferred option for spoken languages, and in such cases the court or tribunal should take extra steps to satisfy itself that the arrangement is acceptable to the court or tribunal and to the parties, and to monitor it closely.
Standard 12 – Provision of professional development to interpreters on the Standards
Where the court or tribunal is responsible for the engagement of interpreters, either directly or through an interpreting service, interpreters should be provided with induction and continuing training, either by the court or tribunal or interpreting service, to ensure that interpreters understand their role as officers of the court or tribunal, in that they owe paramount duties to the court or tribunal, and responsibilities under the Court Interpreters’ Code of Conduct
Optimal Standard 1 – Simultaneous interpreting equipment
To improve the efficiency and quality of interpreting, satisfy the requirements of procedural fairness and improve the working conditions of interpreters, courts and tribunals should review their equipment for interpreters and consider introducing simultaneous interpreting equipment to allow interpreters to interpret simultaneously from a distance, without the need to sit next to the party or witness.
In many Australian hearing rooms, the dock is physically situated behind the bar table which means that counsel will not be able to view the interpreter and the interpreter may have difficulty hearing counsel. In such hearing rooms, judicial officers need to be particularly active in monitoring the pace and audibility of communication.
Such poor conditions can be rectified by providing appropriate equipment. There is a wide range of technologies available to assist the interpreting process. In international settings, such as conferences and international courts of justice, interpreters sit in a sound-proof booth, hear the speaker through headphones and interpret into a microphone. In international courts of justice, the booths are equipped with buttons to signal when an interpreter needs a repetition or clarification.26
As part of improving the working conditions of interpreters, it is recommended that simultaneous interpreting equipment be provided. This will allow interpreter(s) to sit independently from all the parties, in a position where they can see all parties, and interpret through headphones. This will also facilitate safer working conditions, where the interpreter does not need to sit in close proximity to potentially dangerous criminal offenders, or where health and safety or social distancing guidelines suggest it is unsafe to sit so closely to another person.
Depending on how frequently a court or tribunal needs interpreters, an approach could be to equip at least one court with simultaneous interpreting equipment and booths, as well as appropriate recording devices to record proceedings, including the interpretation.
An alternative option is the use of inexpensive portable simultaneous interpreting equipment without a booth. This equipment needs to be used in conjunction with the headphones already used by courts for people who are deaf and hard of hearing. These hearing loop headphones can allow interpreters to effectively hear what is being said while sitting anywhere in the hearing room. The interpreter interprets into a transmitter connected to a radio receiver with earphones worn by the party who requires the interpreting service. Where available, hearing loop headphones should always be offered to the interpreter.
It must be noted that not all interpreters are capable of interpreting simultaneously, as such a mode requires specialised training.
Video Remote Interpreting can be utilised for situations where there are no interpreters with an appropriate level of certification residing in a particular location or if the cost of sending an interpreter to a particular location is prohibitive, or where it is not possible for all parties or the interpreter to be in the hearing room together due to mandatory or adopted health and safety requirements. See Annexure 6 for more information on working with interpreters via audio-visual link.
For people who use Auslan as their first language, the best form of communication is via an Auslan interpreter. Hearing loops and real-time captioning can be effective for people who are hard-of-hearing and do not use Auslan. Hearing loops allow people with hearing aids or cochlear implants to hear clearly without other background distracting noise. Real-time captioning is similar to courtroom stenography. A captioner uses a stenotype machine, phonetic keyboard and special software to convert the information being discussed into captions, which are then displayed, on a screen, computer or tablet device. Depending on the communication needs of the person, some may benefit from a combination of communication methods.
Interpreters should be permitted access to other tools, such as online glossaries and dictionaries, which may assist them in effectively interpreting what may be unfamiliar legal terminology. If an interpreter accessing the internet on a personal device is of concern to the court or tribunal, a dedicated device should be provided to them.
Optimal Standard 2 – Provision of tandem or team interpreting
Whenever possible, courts and tribunals should utilise tandem interpreting. Particularly in the case of Tier C and Tier D languages when a Suitable Person may be difficult to locate and engage, courts and tribunals should utilise team interpreting.
Interpreting is physically and mentally taxing and can be exhausting if conducted for lengthy periods of time. The quality of the interpreting is also likely to become adversely affected the longer a single interpreter is required to interpret without adequate breaks.
Two interpreters working in tandem is more satisfactory than a single interpreter for all languages. Courts and tribunals can expect to at least double the speed of proceedings if they employ a team working in tandem. This approach is standard practice in international courts, where two interpreters work together in tandem at all times. It has also been standard practice for Auslan interpreters working in Australia for many years.27 Having two interpreters helping each other and checking on each other’s performance is also a very effective quality assurance mechanism.
Shorter assignments – such as initial appearances, arraignments, status conferences and pleas – can usually be covered by a single Certified Interpreter. Types of proceedings in which the engagement of at least two interpreters is considered particularly important include:
- trials and other proceedings in which evidence is taken, particularly when witness(es) give protracted evidence or if the case involves the calling of a number of witnesses, all of whom require the assistance of an interpreter;
- legal arguments on motions;
- sentencing hearings at which complex issues are argued; and
- any other complex proceeding.
The use of tandem interpreting is considered an optimal standard for the purposes of the Standards with the exception of Auslan and signed languages where the use of tandem interpreting is mandatory.
Generally speaking, in instances when less qualified interpreters are used, they should always work together as a team, including for short matters. Prior to proceeding with a trial engaging an interpreting team, the judicial officer should hold a voir dire process to determine whether the team members have sufficient language proficiency in both English and the other language and are competent to handle simultaneous and consecutive interpretation.
Tier A – Certified Interpreters
For matters that are scheduled for longer than two days, two Certified Interpreters, or Certified Specialist Interpreters if available, should be employed to work in tandem, for cross-checking and mutual support. When at least two interpreters are hired, it is suggested that they change over after approximately 30 minutes of interpreting for spoken languages, and approximately 20 minutes for signed languages, preferably during a natural break in the proceedings.28
Where courts and tribunals are unable to locate and engage a Certified Interpreter or a Certified Specialist Interpreter for Tier A languages, after making intensive efforts to do so, the Standards recommend that a team of Certified Provisional Interpreters be formed as a quality assurance strategy.
Tier B – Certified and Certified Provisional Interpreters
Where courts are unable to locate and engage a Certified Interpreter or a Certified Specialist Interpreter after making intensive efforts to do so, courts can engage the services of Certified Provisional Interpreters in Tier B languages subject to the following conditions:
- for matters of less than half a day, a single NAATI Certified Provisional Interpreter should be employed;
- for matters of more than half a day, two NAATI Certified Provisional Interpreters should be employed to allow turn taking, cross checking and mutual support;
- for matters of three or more days, two Certified Provisional Interpreters (or one Certified and one Certified Provisional Interpreter) should be employed to allow turn-taking, cross-checking and mutual support.
When at least two interpreters are hired, it is suggested that they change over after approximately 30 minutes of interpreting, preferably during a natural break in the proceeding.
Tier C – Certified Provisional Interpreter available in majority of cases
For matters of a single day, when a single NAATI Certified Provisional Interpreter is engaged, the court or tribunal should take more frequent adjournments to allow the interpreter to take a rest (at 5 minutes for every 25 minutes).
For matters of two or more days, two NAATI Certified Provisional Interpreters should be employed to allow turn taking, cross-checking and mutual support.
When at least two interpreters are hired, it is suggested that they change over after approximately 30 minutes of interpreting, preferably during a natural break in the proceedings. Matters should generally be adjourned until two interpreters can attend.
Where it is not possible to secure sufficient Certified or Certified Provisional Interpreter for a matter, after making intensive efforts to do so, courts and tribunals can engage the services of a team of Recognised Practising Interpreters. It should be noted that team interpreting is a complex task. Putting two or three less competent interpreters untrained in teamwork, or untrained bilinguals, together in a team will not automatically result in competence.
Two types of three person teams can be considered:
- One type of team would comprise a Certified or Certified Provisional Interpreter certified in another language who also speaks the required language PLUS a bilingual person who speaks the language as a first language PLUS a Certified level mentor.
- Another type would comprise a Recognised Practising Interpreter who speaks that language PLUS a bilingual person who speaks the language as a first language PLUS a professional mentor.
It is essential that a bilingual who speaks the language as a first language is included in the team as a quality assurance process. This is because there are a number of NAATI Certified Interpreters or Recognised Practising Interpreters providing services in third or more distant languages, of which they are only partial speakers and are insufficiently linguistically competent to work alone to provide accurate interpretation. Therefore, it may be that a bilingual and NAATI Certified Interpreter providing services in a third or more distant language have differences of opinion regarding the interpretation process. Any disagreement between team members should be brought to the attention of the court or tribunal and a process determined by the court or tribunal for responding to the concern.
Professional mentors (who are Qualified Interpreters and therefore have court or tribunal experience but do not speak the required language) will assist the bilinguals with ethical issues, to manage the interaction of parties in the hearing and matters of clarification. This approach recognises the complexity of interpreting in courts and tribunals and the multiple skills required.
- In this scenario, the judicial officer should determine how other parties in the hearings room can assist the interpreter to share the communication load and should take additional measures if untrained bilinguals are engaged. For example, when bilinguals are used in a team, the judicial officer may decide that only consecutive interpreting will occur and instruct the parties to speak slowly, simplify the language used and explain the meanings of legal terms.
- This approach to team interpreting for untrained bilinguals has several advantages over simultaneous whispering. Firstly, counsel and the judicial officer can hear whether the interpreter is having trouble keeping up with the speech. Secondly, it will enable a second interpreter to advise if there has been a significant misunderstanding. Thirdly, it will enable the party to react immediately without being distracted by the voices of counsel and the interpreter speaking at the same time. Fourthly, it will assist the judicial officer to prevent overlapping speech.29
Tier D – Languages for which there are very few or no certified interpreters
Where courts and tribunals are unable to locate and engage NAATI certified interpreters for a matter, the services of a team of non-certified interpreters can be engaged.
Two types of three person teams can be considered:
- One type of a team would comprise a Certified or Certified Provisional Interpreter certified in another language who also speaks the required language PLUS a bilingual person who speaks the language as a first language PLUS a professional mentor.
- Another type would comprise a Recognised Practising Interpreter who speaks that language PLUS a bilingual person who speaks the language as a first language PLUS a professional mentor.
As noted above, it is essential that a bilingual who speaks the language as a first language is included in the team as a quality assurance process.
Optimal Standard 3 – Provision of professional mentors
In cases where it has been necessary to engage a Suitable Person for a Tier C or Tier D language, courts and tribunals (where they are responsible for providing the interpreter) or the party engaging the interpreter should endeavour to provide a Professional Mentor for the person undertaking the office of interpreter. The role of the Professional Mentor is to assist the person undertaking the office of interpreter with ethical issues, to assist with the interaction of that person with others in the hearing, including where clarification or explanations may be required.
The Standards introduce the concept of a Certified level mentor who works with untrained bilinguals to assist them to fulfil their responsibilities. Professional Mentors are Qualified Interpreters who are experienced in court interpreting but do not speak the required language. It is envisaged that such mentors will assist the bilinguals with ethical issues, assist to manage the interaction of parties in the court and with matters of clarification.
Guidelines will need to be developed about the certifications and/or attributes of a Professional Mentor and expectations about their role in court. It would be desirable, but not necessary, if they were a Certified level interpreter. NAATI certification alone is insufficient. Some form of professional development would need to be developed and such training could be developed and offered by AUSIT or other approved provider.
Indigenous interpreting has used mentors and team interpreting for many years and this role is performed by a range of experienced people, not just interpreters. Mentors include more experienced interpreters, linguists or people familiar with the cultural context of the courts.
Optimal Standard 4 – Establishment of an interpreters’ portal
Courts and tribunals should consider setting up an interpreters’ portal to upload booking and briefing materials, and where both interpreters and legal personnel can provide feedback after each assignment.