Australia is one of the world’s most culturally diverse nations.1 Aboriginal and Torres Strait Islander peoples have the longest continuing culture in the world, and in Australia currently number 700,000, or 3 per cent of the total population.2 One in four Australians was born overseas.3 These 5.3 million people include Australian citizens, permanent residents and long-term temporary residents. Another linguistic and cultural group in Australia are the estimated 10,000 Deaf people who use Australian Sign Language (Auslan) as their first language.4
While Australia benefits enormously from this diversity, it also presents systemic challenges, particularly in relation to issues of access to justice. The Australian legal system was established at a time when the population it served was more homogenous than it is today.
Proceedings in Australian courts and tribunals are conducted in English. However, over 300 languages are spoken in Australian households,5 meaning that it is not uncommon for people coming before the courts to require the assistance of an interpreter in legal proceedings.
It is a fundamental duty of any judicial officer to ensure that proceedings are conducted fairly. Those involved in legal proceedings must be able to understand what is being said and be understood. In criminal cases, for example, the accused must be able to understand the nature of the case against them and have a real and effective opportunity to test the prosecution case and defend the charges. To achieve this, it is not sufficient that the accused be physically present: they must be linguistically present.6 As such, interpreters play an essential role in the administration of justice in our linguistically diverse society.
The Judicial Council on Cultural Diversity (JCCD) has developed these Recommended National Standards for Working with Interpreters in Courts and Tribunals to establish recommended and optimal practices for Australia’s courts and tribunals. The Standards are accompanied by Model Rules and a Model Practice Note that give effect to the Standards. The Model Rules recognise and affirm the important role of interpreters by confirming their status as officers of the court, owing their paramount duty as such to the court.
Effective communication in courts and tribunals is a responsibility shared between judicial officers, staff, interpreters, and members of the legal profession. As such the Standards are directed to:
- Courts and tribunals as institutions (including those responsible for court administration)
- Judicial officers
- Members of the legal profession
The Standards are intended to provide courts with guidance on engaging and working with interpreters to ensure procedural fairness for people with limited English proficiency. It is recommended that all Australian courts and tribunals apply the Standards and adopt the Model Rules and Model Practice Note with such adaptations as are necessary to meet the needs and legislative context of their jurisdiction. Since their original publication in 2016, the Standards have been implemented wholly or in part by several jurisdictions around Australia. The High Court of Australia has also made reference to them in relevant judgments.7
The Standards are intended to be flexible and are designed to apply across a range of settings, recognising that varying levels of resources may be available in different jurisdictions. Reflecting this approach, the Standards include minimum (or baseline) recommended standards – that should be complied with by courts in all circumstances – and optimal standards, to be met when funding and other circumstances permit. The purpose of the Standards is to embody the benchmark to which all courts in Australia should give effect. They do not justify a reduction in standards or practices already in place in courts that exceed the Standards.
This document also addresses four areas:
- the use of simultaneous interpreting equipment;
- tandem or team interpreting;
- the provision of professional mentors;
- the establishment of an interpreter portal;
in which resources would be required which are not presently available to all or even many courts and tribunals. In those areas the document describes procedures regarded as best practice — described as “Optimal Standards” — which are intended to provide aspirational targets or longer-term strategies or objectives to be implemented as and when resources become available.
The Standards are to be read and applied with their annotations, comprising the Annotated Standards. The Annotated Standards and Legal Appendix provide an invaluable compendium of the current best learning and practice on the role of interpreters in the courts.
The Standards introduce a graded approach to choosing an interpreter or interpreting team. Languages in Australia are divided into four tiers based on National Accreditation Authority for Translators and Interpreters (NAATI) data on the number of certified practitioners at certain levels for each language. The tiers recognise the current supply of interpreters, and are organised in such a way that courts, tribunals, and members of the legal profession should be able to meet the standards of each tier provided they make sufficient effort to do so. The four tiers are based on the available data as to the number and expertise of interpreters Australia wide for each language:
- Tier A – Languages where there are ample NAATI Certified Interpreters with formal education/training in interpreting and the possibility of NAATI Certified Specialist Interpreters.
- Tier B – Languages with fewer NAATI Certified Interpreters with or without formal education/ training and which have a sufficient supply of Certified Provisional Interpreters.
- Tier C – Languages where NAATI Certified Provisional Interpreters are generally available.
- Tier D – Languages where there are very few or no certified or trained interpreters and Recognised Practising Interpreters are the only option.
Implementation of these Standards is not only vital to promoting and ensuring compliance with the rules of procedural fairness. It is intended that they will promote a better working relationship between courts and tribunals, the legal profession, and the interpreting profession, and will assist in ensuring that the interpreting profession in Australia can develop and thrive to the benefit of the administration of justice generally. Further, it is intended that there will also be a process of educating judicial officers, court and tribunal staff and the legal profession on the implementation of the Standards for which the JCCD is currently developing training.
Implementing these Standards will have cost implications. It is intended that these Standards will encourage other courts and tribunals which do not provide interpreters to follow the example of those that do, particularly where dealing with particularly vulnerable or disadvantaged litigants. It is essential that governments, in order to ensure equality and access to justice for all, provide courts and tribunals with adequate funding to give effect to these Standards.
By implementing these Standards, courts and tribunals will be supporting a sustainable and highly skilled interpreting profession in Australia and contribute to system-wide improvements in interpreting.
It is intended that the Standards will be kept under review and updated from time to time, including importantly the categorisation of languages for each tier set out in Standard 11.