Annotated Standards: Recommended Standards for Interpreters

All interpreters should familiarise themselves with their responsibilities under the Court Interpreters’ Code of Conduct and be prepared to swear or affirm that they will adhere to that Code. The Court Interpreters’ Code of Conduct is based on the Code of Ethics of the Australian Institute of Interpreters and Translators (AUSIT) that is accepted by practitioners and interpreting and translation service users.⁵³

AUSIT expect their members to abide by its Code of Ethics and NAATI certified practitioners are required to answer questions on ethics, based on the AUSIT Code as part of their certification process. The Code adopts these standards as the expectation of all interpreters assisting the Court, regardless of whether or not they are members of AUSIT.

If bilinguals are being engaged to fill the office of interpreter during court or tribunal proceedings, the bilingual must take steps to understand the Code and understand the duties they are being asked to fulfil. However, it must be stressed that understanding the requirements of the Code of Ethics will not guarantee accurate interpreting if the bilingual does not possess the necessary skills and competence.

When establishing interpreting teams that include untrained bilinguals, the court or tribunal should take steps to confirm they understand their responsibilities under the Code. The court or tribunal may fund training for such bilinguals in the main languages of demand for which there is insufficient supply of interpreters.

Similarly, one of the responsibilities of the Professional Mentor (see Optimal Standard 3) is to assist the bilinguals to adhere to the Code.

Certified interpreters who abide by the AUSIT Code of Ethics frequently complain that they are asked to act in ways that their Code of Ethics regards as unethical. For example, interpreters advise they are at times asked by judicial officers, court or tribunal staff and legal representatives to:

• take a person to the court or tribunal office and explain the legal process;
• convince a lawyer’s client to accept an offer;
• offer lay advice on the credibility of a limited English proficiency speaking witness; or
• serve as experts to the courts or tribunals, by being asked to give evidence on a wide variety of linguistic or cultural matters.

Other common misunderstandings of the role of the interpreter are when:

• the limited English proficiency speaker may perceive the interpreter as their ally; for example, they might expect the interpreter to help them make decisions, answer questions correctly, or offer advice or explain the legal process;
• lawyers sometimes think that if their firm is paying for the interpreter, then the interpreter should, or must, be on “their side” and therefore help them to win their case, or to become an assistant to their limited English proficiency speaking client.

The interpreter’s fundamental obligations are accuracy, impartiality and confidentiality. These are reflected in the Court Interpreters’ Code of Conduct and the AUSIT and ASLIA Code of Ethics.

The fundamental role of the interpreter is to convert what the speaker says to the language of the listener. Interpreters must understand the meaning and style of discourse rapidly, accurately convert it into another language, and articulate it. The potential subject matter of legal proceedings is very broad so the interpreter needs to have a broad general knowledge, as well as a broad active and passive vocabulary and excellent knowledge of regionalisms, idioms and language variations in English and the other language. They should also be able to vary the language they use to accurately match the diversity of language habits of parties.

The interpreting process is complex and involves three main steps: comprehension, conversion and delivery.

Comprehension

The level of the interpreter’s comprehension will depend on many factors, including:

• high level proficiency of the languages in all registers;
• knowledge of the subject matter;
• knowledge of the terminology; and
• knowledge of the context.

Knowledge of the languages involved

While there are many people who speak more than one language, few understand and speak two or more languages to such a high degree of competence that they can use both languages in all ‘registers’ – from conversations to high-level international negotiations. Further, interpreters working in specialist areas such as law also require knowledge of specialised terminology and discourse practices in order to accurately interpret.

Knowledge of the subject matter

Interpreters working in legal settings also need to understand the subject matter under consideration. Without this, they will not be able to understand the source language message and consequently will not be able to accurately interpret. Research has shown that even in situations where both parties share the same language, the level of comprehension rises significantly the more those involved understand the specific subject matter being discussed. This is why it is of the utmost importance that, where possible, interpreters receive adequate briefings, as well as relevant documents and materials, in order to prepare before the commencement of a hearing.

Knowledge of the context

A word or phrase can take on different meanings according to the way in which it is used. As a result, it is crucial for interpreters to know as much as possible about the context in order to perform their interpreting role accurately.

To take an example from a real case, an interpreter who was not briefed about the situational context was asked to interpret: “Did you see the couch in the room?” The interpreter understood the word “couch” to mean a “lounge chair” and interpreted it as such into the target language. The answer to this question was in the negative. As the questioning progressed, it became apparent to the interpreter that the term “couch” referred to a surgical bed in a doctor’s surgery and should have been interpreted using a different word in the target language. When the interpreter realised this, they asked permission from the judicial officer to rectify the mistake and was allowed to do so.⁵⁵ However, much time was wasted. Had the interpreter been properly briefed, the misunderstanding could have been avoided.

Conversion

Conversion is a term used to describe the mental process the interpreter needs to engage in to convert a message from a source language to a target language. Trained, experienced interpreters will make informed choices, and will be able to justify such choices if questioned.

Trained interpreters take all of the following into account in deciding how best to convey what the speaker says into a target language:

• What was the purpose of the statement? (for example: to accuse, compliment or offend?)
• In what tone was the utterance made? (for example, sarcastic, contrite, indifferent?)
• What was the manner of the utterance? (for example, confident, hesitant, assertive, confrontational, polite, impolite?)
• What would be the likely reaction of the listeners had they heard it in the original language? (for example, would they feel offended, intimidated or put at ease?)
• What is the register used? (for example, formal or informal?)
• To whom is the statement addressed and what is the relationship between the speakers? (for example, is it a person of authority addressing a person of a lower status? Or are both those involved of equal status? Is there an age or gender difference?)⁵⁶

The interpreting task is mentally and physically taxing. The interpreter needs an exceptional memory and needs to undertake the complex mental analysis at the same time as committing facts to memory, taking notes, accessing their knowledge of the subject matter and terminology, and then rendering what they have heard in one language into another.

Delivery

The interpreter needs to give the fullest possible interpretation of what was being said. This involves not just accurately conveying the content of an utterance, but also the manner and style of delivery. The interpreter needs to speak as much like the person for whom they are interpreting as is possible. They become their “voice”, not unlike an actor, and therefore they need to be faithful to the register and style of the original speaker, as well as to the content of the utterances.

An essential part of accurate interpreting is the use of the first or second grammatical person. For example, when interpreting in the first person, an interpreter will interpret: “They grabbed me”, rather than in the third person “They said that they grabbed them”. When interpreting in the second person, the interpreter will interpret: “Tell the Court what happened”, rather than in the third person: “They are telling you to tell the court what happened”.

Questions should be addressed directly to the person being questioned, not the interpreter. This is known as the ‘direct’ approach, as opposed to the mediated approach.

When the interpreter is interpreting on behalf of the judicial officer, the interpreter needs to sound like the judicial officer. Similarly, when interpreting for an educated witness, the interpreter needs to sound like an educated person. Conversely, when interpreting for an uneducated witness, the interpreter needs to sound like an uneducated person. Only very highly trained interpreters are capable of providing such high levels of accuracy.

What must be interpreted

The role of the interpreter is to remove the language barrier so that the party can be made linguistically present at the proceedings and thereby be placed in the same position as an English-speaking person. This means that they are entitled to hear the proceedings in their own language. It does not mean that they will necessarily understand everything, just as English speakers do not necessarily understand everything that transpires in a court or tribunal.

Ideally, the interpreter should interpret everything said during proceedings. Just as the court or tribunal needs to hear the interpretation of everything that was said in a language other than English by the party or witness, the defendant is also entitled to hear everything that is said in English, as someone who understands English would.

For this reason, interpreters should interpret objections and should not be instructed to refrain from interpreting them. Once the interpreter has heard an utterance, the interpreter is under an obligation to interpret it into the target language in order to satisfy the party’s entitlement to be linguistically present.

Interpreters must interpret:

• Direct speech to the party, including:
  • charges;
  • sentencing remarks;
  • explanations from the bench about adjournments and court processes;
  • any questions put to the party from the judicial officer or counsel;
  • bail or any other conditions imposed by the court;
• Speech expressly about the party including:
  • reading of the agreed facts;
  • comments by the prosecution, judicial officer or defence lawyer about the accused’s character (such as criminal history or prospect of rehabilitation);
  • reading of character references or similar statements;
  • addresses to the jury;
• A prosecutor or judicial officer reading a victim impact statement;
• Examination and cross-examination of witnesses, including expert witnesses;
• Direct speech by the party or witness, including any comments addressed to the interpreter;
• Sentences, orders and conditions.

Sight translation

Insofar as Standard 20.1 involves sight translation, Standard 26 is intended to make clear that sight translation in the course of a hearing is to be the exception rather than the rule. Where it is necessary for an interpreter to be asked to sight translate a document in a hearing, that request should be confined to short, simple documents. As has already been observed (see Annotated Standard 16.3 above), translation and interpretation are different skills. Under Model Rule 5.3, an interpreter may decline to translate at sight, “if the interpreter considers they are not competent to do so or if the task is too onerous or difficult by reason of the length or complexity of the document”.

Accuracy in interpreting

A common misconception is that accurate interpreting equates to literal, word for word translation. Due to differences across languages, including grammatical, pragmatic and cultural, literal translations are rarely possible. Most literal translations will simply render non sensical utterances in the target language.

The following are examples of common issues:

• Ideas that are succinctly expressed in one language may need many words for them to be conveyed accurately in another language. For example, the German word “schadenfreude” is conveyed in English as “pleasure in another person’s misfortune”. Similarly, some languages do not have specialised jargon for certain domains. A single English word or concept may have no direct equivalent in the other language, and will therefore require elaboration by the interpreter to transfer its meaning.
• It is not always easy to interpret complex and abstract ideas from English into other languages and vice versa. Interpreters may need to seek clarification if they are unfamiliar with abstract nouns, jargon, acronyms, technical terms or have trouble rendering a term or concept with the expected degree of accuracy (for example, murder or manslaughter; assault or aggravated assault). This can also be due to differences across legal systems which do not have equivalent concepts.
• Literal word for word translations of idioms will rarely make sense. Good interpreters will select a similar idiom that maintains the meaning, the tone and the intention of the original. For example, “It’s raining cats and dogs” would be translated as “Llueve a cántaros” (Spanish – “rains in clay jars”) to maintain the meaning of “It is raining heavily”. In this instance, the grammar is different as well (“it’s raining” was changed to “rains” due to grammatical differences between the two languages), but the translation was accurate.
• The way politeness is expressed across language can be very different. A good interpreter will attempt to achieve the same level of politeness, in order to achieve the same effect as the original on the target language listener. For example, one way to show politeness in English is by being indirect, so a request to do something will normally be expressed in the form of a question, such as: “Would you be able to tell the court what happened?”. In some languages, such a question will be understood as a genuine question of ability. In order to interpret accurately, the request may need to be rendered as a direct, specific command in the target language, for example, “Please tell the court what happened”.⁵⁷
• Different languages use different ways to refer to the passage of time, location and space, as well as number, gender, or family relations. Often when interpreting from a less specific to a more specific language the interpreter may need to seek clarification in order to ensure that meaning is conveyed accurately. For example, an Aboriginal person may distinguish between “properly his father” (his biological father) and his father’s brothers (who are also his fathers in kinship terms). In Auslan, the meaning of a sign or a location in space may be ambiguous if the context is not clearly understood by the interpreter, and will need clarification.

Content and manner are important in hearing room discourse. Interpreters should aim to achieve accuracy of content and manner, including the tone and register of the source language utterances. Competent and ethical interpreters will not omit information provided in an answer that they consider to be irrelevant to the question.

In court interpreting, trained interpreters will strive to preserve the tone of the original – whether hesitant or confident – and will even interpret obvious mistakes, as they are attempting to maintain full accuracy of the original. For example, if the question is confusing, an accurate rendition will also be confusing. Similarly, a hesitant answer needs to be interpreted hesitantly, an assertive answer assertively, and so on. Competent and ethical interpreters will not attempt to make the questions and answers more coherent or easier to understand. Research has shown the manner in which testimony is delivered is as important as the content.⁵⁸

Example 1

Defendant: Ah…dejeme pensar…eh…no sé si dije eso. (Addressing the interpreter) No, perdón, mejor no diga eso. Diga que no dije eso.

Gloss: Uh…let me think…uh…I don’t know if I said that. (Addressing the interpreter) No, sorry, please don’t say that. Say I didn’t say that.

Interpreter A (incorrect): I didn’t say that.

Interpreter B (correct): Uh…let me think…uh…I don’t know if I said that. No, sorry, please don’t say that. Say I didn’t say that.

In this example, the interpreter is placed in an ethical dilemma. The defendant answers in a hesitant way and then asks the interpreter to only interpret the last part of his answer.

Interpreter A abides by the defendant’s request. Such an interpretation constitutes an inaccurate rendition and a breach of the Court Interpreters’ Code of Conduct. Interpreter B provides an accurate rendition of the original and abides by the Code.

The accuracy of interpreting will depend on many factors, including:

• understanding of the purpose of the interpretation;
• the setting where the interpretation takes place;
• the competence of the interpreter;
• the mode of interpreting (i.e. consecutive or simultaneous);
• the working conditions provided to the interpreter;
• the preparation materials provided prior to the interpreting event;
• the briefing given to the interpreter;
• the manner and speed in which all speakers deliver their speech; and
• the time allotted by the court or tribunal.

Communication is a shared responsibility between the interpreter and all other parties in the court or tribunal. It is important for all speakers to be aware of interpreters and assist in facilitating 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;
• avoiding difficult jargon, or if such jargon is necessary, explaining what it means in lay terms;
• speaking at a reasonable pace and in an audible, clear voice.

Interpreting in the appropriate mode

The consecutive mode

When the limited English proficiency speaker gives evidence, the most common mode of interpreting in Australian courts and tribunals is currently the consecutive mode. The interpreter stands or sits (depending on the length of the testimony), next to the witness and interprets after each short segment. Trained interpreters will know how to take notes and how to coordinate the turns and will commence interpreting at the appropriate intervals. However, there will be interpreters who are not as competent and may not know how to take notes or are not as confident and may be reluctant to interrupt. As a consequence, their interpretation may not contain all the elements of the original. For this reason, the judicial officer must be alert to ensure that speakers stop at reasonable intervals to allow the interpreter to interpret.

Simultaneous mode

Currently, most courts and tribunals in Australia are not equipped with simultaneous interpreting equipment, which means the interpreter must sit uncomfortably close to the witness to whisper in their ear. Similarly, when an accused is in the dock, interpreters are often also seated next to them in the dock. This proximity is not only uncomfortable and unprofessional for interpreters, it can also portray inappropriate messages to the jury or others in the court who may associate the interpreter with the defendant or accused. Auslan interpreters generally work in the simultaneous mode, standing apart from the deaf party (so that both can see each other’s signing).

The different modes of interpreting are further explained in Annexure 2.

Language and culture

Language and culture are inextricably linked. Some cultural aspects are embedded in the way people express themselves. Others are reflected in the way people behave or act. Cross-cultural differences that are embedded in a language can often be addressed through an accurate rendition. Other cross-cultural differences may be very subtle, for example, manifesting via the way a person addresses others;
the way a person gives and accepts compliments; the way a person asks and answers questions; the way a person perceives concepts; and what a person regards as appropriate or inappropriate behaviour.

Some cross-cultural differences may lead to misunderstandings if both speakers are unaware of them. However, sometimes misunderstandings occur because of poor communication skills or poor interpretation that are sometimes unjustifiably attributed to cross-cultural differences.⁵⁹ There is also sometimes a tendency to overgeneralise about cross-cultural differences, and incorrectly assume that all people who speak one language act and think in the same way.

Examples of cross-cultural communication differences are eye contact and silence. In some societies people who avoid direct eye contact may be regarded as suspicious or shifty. In Aboriginal, some Asian and other cultural groups it is frequently considered impolite to stare. In some societies lengthy silences may be taken as evidence of non-cooperation, evasion or untruthfulness. However, in other societies people may think very deeply and carefully before talking about serious matters and lengthy silences can be the norm while this occurs.⁶⁰

Another example is the use of affirmative head nodding by a deaf party or witness. As the deaf person watches the interpreter’s rendition of the English question into sign language, they may nod, as if they are agreeing with the proposition. Often this is an acknowledgement that they are following the signed question, rather than providing an affirmative answer.

It is impossible to list all the cross-cultural differences that may be encountered in court and tribunal interpreting. Rather, it is important to be conscious of the fact that cross-cultural misunderstandings can and do occur. One way to address this issue is for all parties to be alert to situations when an answer may not sound logical or relevant. Before assuming that there is something wrong with the answer, or with the interpretation, the person could be asked to explain why they said what they said. Interpreters should also be allowed to alert the court or tribunal to a potential cross-cultural misunderstanding, which can be followed up with questions from counsel or the bench.

Interpreting the oath to the witness

Interpreters will also have to interpret the witness’ oath or affirmation. Due to grammatical differences across languages, for some languages, it is appropriate to interpret the oath phrase by phrase, but for other languages, it is easier to interpret the oath as a whole. The interpreter should be consulted about what is best for their particular language. The following is recommended when delivering the witness oath that needs to be interpreted into a language that is grammatically very different from English:

• the clerk provides a written copy of the entire oath or affirmation in advance to the interpreter;
• the clerk reads out the entire oath or affirmation in English, without pauses;
• the interpreter delivers it phrase by phrase in the target language (with phrase breaks that make grammatical and logical sense in the target language);
• the limited English proficiency speaker, depending on the requirements for taking the oath or making an affirmation, either repeats it back to the interpreter phrase by phrase or replies with “I do”;
• finally, the interpreter interprets the entire oath or affirmation back to the court or the witness’ reply.

It is very important to give a written copy of the relevant witness oath or affirmation to the interpreter, as many languages have very different syntactic structures to English and sentences cannot be split in the same way as in English.

Basic responsibilities of a court interpreter

Interpreters should be asked to state their name and qualifications before taking the oath or affirmation and confirming their commitment to the Court Interpreters’ Code of Conduct. Qualifications include:

• their level of NAATI certification;
• their membership of a professional association requiring adherence to a code of ethics and conduct;
• any formal tertiary interpreting training they may have completed, either at TAFE or university; and
• their experience interpreting in courts and tribunals.

Interpreters are required to take an oath or affirmation stating that they will interpret everything to the best of their skill and ability.

The purpose of directions made by the court or tribunal is to ensure that matters relevant to the retainer and role of the interpreter are given consideration by the court or tribunal and the parties, ideally before the hearing, and that the interpreter is accommodated appropriately within the proceedings in accordance with these Standards, the Model Rules and the Practice Note. Before making directions, the court or tribunal may hear submissions from the parties on the issues the subject of proposed directions or otherwise make them with the consent of the parties and the interpreter: see also Standard 9.9 as to the list of matters relating to the provision of interpreting services on which a court may make directions.

The court or tribunal will not make directions that direct the interpreter to behave contrary to professional judgment, the Code of Conduct, or any other relevant code of ethics by which they are bound. If an interpreter considers that they cannot comply with proposed directions for professional, ethical or other reasons, this should be raised with the judicial officer as soon as possible.

There may be occasions when, after having accepted an assignment, interpreters need to excuse themselves due to a conflict of interest. For example, the interpreter may become aware of a relationship to a witness, there may be cultural issues that make it difficult for them to accept the assignment, or they may feel they can no longer maintain impartiality due to the extent of conflict with personal values or beliefs. Sometimes interpreters may need to excuse themselves because the material is overwhelming and so distressing that they fear for their mental health if they continue.

Seeking repetitions, clarifications and explanations

Interpreters should address judicial officers as “Your Honour”. If in doubt, Interpreters should seek to clarify the manner in which they address the presiding judicial officer, which may vary depending on the particular court or tribunal.

Example 2

Below are two suggested ways an interpreter can address the presiding officer.

1. Interpreter: Your Honour, the interpreter requires repetition.

2. Interpreter: Your Honour, I am now speaking as an interpreter. May I seek leave to have the last question repeated please?

There may be times when the witness utters a term that is unknown to the interpreter. This may be due to a number of reasons, including that it is a regional term, a very colloquial term, a code term or a technical term.

In such circumstances, the interpreter must ask for an explanation rather than guess the meaning or simply omit the term. At these times, the interpreter needs to speak as the interpreter and not on behalf of the witness.

Requesting breaks

Interpreters require breaks in order to maintain accuracy. Ideally, the judicial officer and the interpreter will have agreed on frequent rest breaks (for example, 15 minute break every 45 minutes of interpreting). However, the interpreter should feel comfortable to seek a break outside of these times.

Explaining cross-cultural misunderstandings is a grey area in interpreting practice. Interpreters do not claim to be anthropologists or cultural experts and should not be used as such. However, culture can affect the meaning of words and impinge on accuracy. Moreover, the interpreter may be the only person in the hearing room who can identify miscommunication due to underlying cross-cultural differences.

It is at these times when the interpreter may be allowed to seek leave to alert the court or tribunal to a potential cross-cultural misunderstanding. The judicial officer must then decide how to proceed – whether to seek an adjournment to clarify with the interpreter, whether to ask the party or witness to explain an issue further, or whether to continue without further action.