Annotated Standards: Recommended Standards for Legal Practitioners
Standard 21 – Assessing the need for an interpreter
To ensure that proceedings are conducted fairly and there is no miscarriage of justice, legal practitioners should ensure an interpreter is provided to parties and witnesses of limited English proficiency.
In determining whether a person requires an interpreter legal practitioners should apply the four-part test for determining the need for an interpreter as outlined in Annexure 4.
Members of the legal profession – along with judicial officers, court and tribunal staff and interpreters – share responsibility for the provision of quality interpreting services in Australia’s legal system.
Lawyers must take all steps consistent with the Standards, including liaising with other relevant parties, to ensure all parties who need language assistance have the assistance of an interpreter.
Assessing the need for an interpreter
To ensure that proceedings are conducted fairly and there is no miscarriage of justice, an interpreter should be engaged in any proceedings where a party who has difficulty communicating in, or understanding, English in a hearing room context is required to appear. Legal practitioners should also take steps at an early stage to ascertain whether persons also have hearing or other impairments that affect their ability to understand and to be understood.
In determining whether a person requires an interpreter legal practitioners should apply the four-part test for determining need for an interpreter as outlined in Annexure 4.
Particular care may need to be taken in selecting the interpreter depending on the subject matter of the hearing and characteristics of the limited English proficiency speaking person. For example, some subject matters (such as sexual cases) may require special consideration in the choice of the interpreter; an experienced interpreter would be strongly preferred for a child, or a person of low intelligence, or a person who is ill-educated.
Raising the need for an interpreter with clients
Legal practitioners need to be sensitive when raising the topic of engaging an interpreter. There are a number of reasons why a client may not want to use an interpreter, including:
- they may not understand the role of the interpreter;
- they might not want additional people knowing their business;
- they may not trust that an interpreter will act impartially, accurately and confidentially;
- they may have previously had a negative experience with an interpreter.
Legal practitioners should explain to the client the role of the interpreter and reassure them that interpreters are bound by their Codes of Ethics and the Court Interpreters’ Code of Conduct.
Standard 22 – Booking interpreters
To maximise the ability of interpreting services to provide an appropriate interpreter for a particular case, the party seeking to engage the services of the interpreter should give as much notice as possible.
When applying for a hearing date, parties or their legal advisors should draw the availability of the interpreter to the court or tribunal’s attention for the judicial officer to take into account where possible.
Whenever possible, interpreters should be booked to start at least 30 minutes prior to commencing their interpreting task in order to be briefed.
Standard 23 – Engaging an interpreter in accordance with these Standards
Parties engaging an interpreter should select interpreters in accordance with Standard 11 of these Standards.
Standard 24 – Briefing interpreters
The legal representatives for a party are to use their best endeavours to ensure that interpreters who are engaged are familiar with, understand and are willing to adopt the Court Interpreters’ Code of Conduct and understand their role as officers of the court or tribunal.
The legal representatives for a party should ensure that interpreters (whether or not engaged by those legal representatives) are appropriately briefed on the nature of the case prior to the commencement of proceedings. The interpreter should be provided with all relevant materials, including those that the interpreter will need to either sight translate or interpret, subject to Standard 26.
An interpreter should be afforded a reasonable amount of time to familiarise themselves with materials that are relevant for the process of interpretation in the particular case.
Briefings are beneficial to both interpreters and lawyers. The better informed both sides are about the other professionals’ role, goals, needs and requirements, the better they will be able to work together.
The party or legal practitioner requiring the assistance of an interpreter should provide the interpreter with sufficient information to prepare for the task of interpreting. What will be required will vary from case to case.
Factors to consider in determining the most appropriate person to brief an interpreter and the contents of the briefing include:
- the nature of the assignment;
- the interpreter’s qualifications and experience;
- the complexity of the case; and
- the role played by the limited English proficiency speaker (for example if the limited English proficiency speaker is only one witness, the briefing will not need to be as thorough as when the limited English proficiency speaker is defendant party).
Preferably, interpreters should be appropriately briefed in advance on the nature of the matter prior to the commencement of proceedings. At a minimum, the legal practitioner requiring the assistance of an interpreter should spend time with the interpreter prior to entering the hearing room to provide an oral briefing to the interpreter.
If it is not possible to provide a briefing ahead of a matter, the legal practitioner should ask the interpreter how much time they will need in order to go over the documents and prepare.
If the court or tribunal is concerned that the work of the interpreter has been impeded because the interpreter has not been properly briefed, the judicial officer may require the relevant party to do so. The case may need to be adjourned for a short period of time to allow for the interpreter’s preparation. The person responsible for the failure to brief the interpreter may be required to explain to the judicial officer why the work of the court or tribunal is being delayed and there may be adverse cost orders made against the party who has caused the delay.
In many instances, the interpreter may also need to have an introductory conversation with the person for whom they are interpreting. Legal practitioners should facilitate this introductory conversation prior to the commencement of proceedings. The purpose of this conversation is to ensure the interpreter speaks the same language as the person, and to ensure that clear communication between the interpreter and person requiring the interpreter is possible.
In briefing the interpreter, the legal practitioner should:
- ensure the interpreter understands what is likely to occur during the proceeding;
- what the possible and likely outcomes of the matter are on the day of the interpreting assignment;
- identify the names of parties, victims and witnesses, to confirm there is no conflict of interest, or cultural/kinship issues in the case of Aboriginal or Torres Strait Islander language interpreters;
- identify any technical, unusual or sensitive words or phrases that are likely to be used; and
- ask the interpreter if there are any cross-cultural issues that the court or tribunal should be aware of – such as social conventions, inappropriate gestures or any taboos.
The interpreter should be provided with all relevant materials, including those that the interpreter will need to either sight translate or simultaneously interpret, subject to Standard 26.
Parties should co-operate to agree on material that can be provided to an interpreter as part of any briefing. Consideration should be given to the following material being provided for the following types of hearing.61
- Copy of charge sheet(s).
For sentencing hearing after plea of guilty:
- Copy of charge sheet(s);
- Copy of summary of police facts.
For defended hearings:
- List of witnesses (so the interpreter may consider whether they know any of the witnesses and whether this creates a difficulty);
- Charge sheet(s);
- Expert evidence statements or affidavits.
For jury trials – agreed ‘interpreter’s bundle’ which may include:
- A copy of the charges and a statement of facts in cases of a guilty plea;
- Names of witnesses;
- Any relevant documents counsel are aware will be shown to witnesses or discussed in submissions, such as photographs or maps;
Witness statement or other written material when portions of the statement will be read to a witness or judicial officer. These may include: expert evidence statements, affidavits, character references, victim impact statements and other documents that are to be read on the transcript;
- Précis of opening address(es).
- Victim impact statements;
- Antecedents (if target language defendant is asked to accept this as their prior convictions).
For appeals – agreed ‘interpreter’s bundle’ which may include:
- Copy of notice of appeal;
- Written submissions;
- Précis of the proceeding.
For civil matters:
- Copy of the application or originating motion;
- The applicant’s points of claim or statement of claim;
- The defendant’s defence and, if applicable, counterclaim;
- Copy of any written submissions for the hearing;
- Any witness statements of the witness for whom the interpreter is interpreting;
- Any expert witness statements, where it is likely the witness for whom the interpreter is interpreting will be asked questions relating to issues in the expert witness statements.
Any confidential documents that are provided to the interpreter as part of the briefing process must be returned to the court/tribunal or the legal practitioner.
It is also important that the legal practitioner and the interpreter should agree how they will work together. Legal practitioners should ask the interpreter how often they would like to have breaks and whether there is anything they need in facilitating their task.
Lawyers for a party should ensure that interpreters they engage are familiar with and understand the Interpreters’ Code of Conduct and their role as officers of the court.
Commonly expressed concerns about briefing
Some opposition to providing interpreters with materials before a proceeding has been based on concerns about confidentiality and practical difficulties in compiling the material. These are not sufficient reasons to avoid a briefing. Co-operation between parties in relation to briefing an interpreter will benefit everyone in terms of more accurate interpreting outcomes, a more efficient hearing and potential savings in court time and therefore costs.
Qualified Interpreters abide by the AUSIT Code of Ethics, which prescribes strict confidentiality. Under arrangements put in place via the Model Rules, all interpreters will also depose that they adhere to the Court Interpreters’ Code of Conduct concerning confidentiality.
In practical terms, all the information will be disclosed to the interpreter during the proceedings in any case. Moreover, interpreters are impartial and officers of the court. They do not have a personal interest in the case (if they do, they should disclose it and withdraw).
Interpreters will be impeded in performing at required levels of competence if they are not adequately briefed.
Standard 25 – Plain English
Legal practitioners should use their best endeavours to use plain English to communicate clearly and coherently during court or tribunal proceedings. Legal practitioners should speak at a speed and with appropriate pauses so as to facilitate the discharge by the interpreter of their duty to interpret.
Legal practitioners appearing in cases when an interpreter is assisting should adapt their advocacy accordingly. The principles of plain English should be used, to clearly and articulately communicate during Court proceedings.
Legal practitioners should assist interpreters in their work as much as possible by:
- speaking in complete sentences;
- avoiding overlapping speech;
- pausing after each complete concept to allow for consecutive interpretation;
- asking one question at a time and ensuring that they are short, manageable and contain understandable concepts for lay audiences;
- avoiding difficult jargon, or if such jargon is necessary, explaining what it means in lay terms; and
- speaking at a reasonable pace and in an audible, clear voice.
Annexure 3 provides detailed plain English strategies and examples of how to phrase questions and statements in plain English. See also the annotation to Standard 14.1 above.
Standard 26 – Documents
Legal practitioners should ensure that any document in a language other than English which is to be referred to or tendered into evidence in proceedings has been translated into English or the other language by a NAATI Certified Translator, where available.
Legal practitioners should not require interpreters to sight translate during the course of a hearing without prior notice (“sight unseen”) long, complex or technical documents. Sight unseen translation by interpreters of even simple or short documents should be avoided as far as possible.