Legal Appendix: Engagement of interpreters to ensure procedural fairness – legal requirements for interpreting

The General Assembly adopted the Universal Declaration of Human Rights in 1948. While not a treaty, many of its provisions reflect customary international law and its influence on the development of human rights has been significant.⁷⁰ The Universal Declaration recognises that everyone has a right to equality before the law⁷¹ and the right to a fair hearing in the determination of rights and obligations or of any criminal charges.⁷²

Australia is also a party to a range of international instruments obliging Australia to promote and observe these fundamental human rights, as well as specific rights requiring access to interpreters in criminal and civil proceedings. While Australia has agreed to be bound by these treaties under international law, they do not form part of Australia’s domestic law unless the treaties have been specifically incorporated into Australian law through legislation.⁷³

A failure by Australia to comply with the provisions of certain human rights obligations enacted into Australian law can form the basis of a complaint to the Australian Human Rights Commission or, once domestic remedies have been exhausted, to a relevant treaty body.

An example of the latter is the United Nations Human Rights Committee established by the International Covenant on Civil and Political Rights (1966)⁷⁵ (“ICCPR”) which may consider complaints by individuals that rights enumerated in the Covenant have been violated where a State party to the Covenant has also subscribed to the “jurisdiction” of the Committee by becoming a party to the Optional Protocol to the Covenant, as did Australia in 1991. Australia’s human rights record is also subject to the Universal Periodic Review every four years by the Human Rights Council established by UNGA Res 60/251 on 15 March 2006.

Relevant provisions in international conventions to which Australia is a party include the following:

1. The International Convention on the Elimination of All Forms of Racial Discrimination (1965)⁷⁶ provides that State parties agree to respect and ensure the human rights set out therein, including that everyone has the right to equal treatment before tribunals and courts without distinction as to race, national or ethnic origin.⁷⁷
2. The ICCPR provides for a variety of rights associated with interpreters. These include the right of a person upon arrest to be informed, in a language they understand, of the charges and reasons for their arrest, the right to communicate with Counsel, the right to the free assistance of an interpreter if they do not speak the language of the court in criminal proceedings,⁷⁸ and under article 14 the right to equality before courts and tribunals and to a fair hearing in the determination of criminal charges.⁷⁹
3. The United Nations Convention on the Rights of Persons with Disabilities (2007) was ratified by Australia in 2008 which also acceded to the Optional Protocol in 2009.⁸⁰ The Convention specifically prohibits discrimination against people with a disability and provides that parties are required to provide assistance and intermediaries, including guides and professional sign language interpreters.⁸¹

In 2007, the Human Rights Committee⁸² clarified the jurisprudence on the right to equality before courts and tribunals and to a fair trial under Article 14 of the ICCPR,⁸³ stating that:

• the right to equality before courts and tribunals means that “the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant”;⁸⁴
• the principle of equality between parties applies in criminal and civil proceedings;⁸⁵
• “In exceptional cases, [the right] also might require the free assistance of an interpreter be provided where otherwise an indigent party could not participate on the proceedings on equal terms or witnesses produced by it be examined”;⁸⁶ and
• that persons charged with a criminal offence may also need to communicate with counsel via the provision of a free interpreter during the pre-trial and trial phase as part of matters that need to be considered to enable a fair trial.⁸⁷

In addition, while Australia did not sign the United Nations Declaration on the Rights of Indigenous Peoples in 2007,⁸⁸ Australia formally endorsed the Declaration on 3 April 2009. Among other things, the Declaration provides that States shall take effective measures to ensure that Indigenous peoples’ rights to use their own languages are protected and to ensure that Indigenous people can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpreters or by other appropriate means.⁸⁹

Commonwealth laws prescribing the use of interpreters include the following.

• The Evidence Act 1995 (Cth) provides in s 30 that “a witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.” Section 31 provides for the questioning and provision of evidence by deaf and mute witnesses.⁹⁰
• Section 366C of the Migration Act 1958 (Cth) provides a mechanism for a person appearing before the Migration and Refugee Division of the Administrative Appeals Tribunal to request an interpreter for the purposes of communication between the Tribunal and the person, a request the Tribunal must comply with unless it considers that the person is sufficiently proficient in English. The provision also provides for the Tribunal to appoint an interpreter if it considers that a person appearing before it to give evidence is not sufficiently proficient in English, even when the person has not requested an interpreter.
• Section 158 of the Native Title Act 1993 (Cth) permits witnesses to give evidence or make submissions to the National Native Title Tribunal through an interpreter.

Following the enactment of the Evidence Act 1995 (Cth), New South Wales, Tasmania, Norfolk Island, Victoria and the Northern Territory enacted virtually identical laws based upon the uniform evidence legislation.⁹¹ The other State and Territory jurisdictions in Australia also have various statutory provisions concerning the use of interpreting services.

• For example, in Queensland, s 131A of the Evidence Act 1977 (Qld) provides that, in a criminal proceeding, a court may order the state to provide an interpreter for a complainant, defendant or witness, if the court is satisfied that the interests of justice so require.
• In South Australia, s 14 of the Evidence Act 1929 (SA) creates an entitlement for a witness to give evidence through an interpreter if the witness’ native language is not English and the witness is not reasonably fluent in English. This provision applies to both civil and criminal proceedings. There are also specific provisions dealing with the provision of interpreters where it is necessary to protect a witness from distress or embarrassment and special arrangements are required; or where the witness is a vulnerable witness and special arrangements are necessary.⁹³
• In Western Australia, ss 102 and 103 of the Evidence Act 1906 (WA) recognise that a witness may give evidence through an interpreter if the interpreter is sworn or affirmed, or the requirement to be sworn or affirmed is dispensed with by the court, and provide for an offence if the interpreter knowingly fails to “translate” [sic] or “translates” falsely. On the other hand, s 119 of the Act provides for payment of interpreters by the state in criminal proceedings, except where the interpreter’s employer pays the interpreter’s full wages (perhaps reflecting a time when interpreters were not usually professionals).

Although there are exceptions, particularly in the case of minor matters, which are able to be dealt with summarily in the absence of an accused, it is common to find legislative provisions which require a sentencing hearing to be conducted in the presence of the accused.⁹⁴ This must mean that the accused is both physically and linguistically present. In Queensland the legislation permits a sentencing hearing to be conducted by audio-visual link or audio link in certain cases.⁹⁵

The statutory provisions concerning appeals are far from uniform. Northern Territory legislation provides that the appellant is not entitled to be present without the leave of the court.⁹⁶ Some jurisdictions provide for a right for the appellant to be present except where the appeal is on a question of law.⁹⁷ Others provide that the respondent to an appeal by the Crown is entitled to be present unless they are legally represented.⁹⁸ In Victoria, a party to a criminal appeal must attend the hearing of an appeal unless excused from attendance.⁹⁹ In Western Australia an appellant who is in custody is entitled to be present whether or not they are legally represented, but the appellant is not required to be present.¹⁰⁰ In the ACT there are no statutory provisions relating to a party’s right to attend the hearing of an appeal.

It is important to note that tribunals are not subject to Evidence Act in the applicable jurisdiction. There may, however, be obligations regarding the provisions of interpreters in their constituent legislation, or under human rights or equal opportunity laws applicable in their jurisdiction (see Legal Appendix 1.5).

1.3.1 The “right” to an interpreter

As the High Court of Australia said in Ebataringa v Deland,¹⁰¹ if the defendant does not speak the language of the court in which the proceedings are being conducted, the absence of an interpreter will result in an unfair trial. The right to an interpreter applies equally to a person who is deaf or mute or both.¹⁰² As such, the Australian common law concerning the right to an interpreter largely conforms with the spirit of the Article 14 of the ICCPR. The key difference is that the common law does not establish the obligation to provide an interpreter as a “right” as such, but rather expresses the position in a negative form. It is more accurate to say that an accused’s “right” to a fair trial is a right not to be tried unfairly, or is an immunity against conviction after an unfair trial.¹⁰³ Nevertheless, provided that these caveats are borne in mind, it is convenient in a shorthand manner to refer to the “right” to an interpreter.

The right derives from the principle that, except in special circumstances, a trial for a serious offence must take place in the presence of the accused, so that they might understand the nature of the case made against them and be able to answer it.¹⁰⁴ Mere corporeal presence is insufficient. The accused must be able to understand what evidence is given against them to enable a decision to be made as to whether or not to call witnesses on their behalf and whether or not to give evidence.¹⁰⁵

The High Court in Dietrich v The Queen¹⁰⁶ discussed the mechanisms by which courts exercise control where such rights are breached or would be breached if the trial were to proceed. These mechanisms are procedural in nature. Thus, a court may order that a trial be adjourned, or proceedings stayed until an interpreter is provided for the accused. It follows that, while at common law courts cannot compel the provision of public funds to provide interpreter services, nevertheless the courts have the power and the duty to act to prevent or on appeal to remedy grave miscarriages of justice. As Deane J explained in Dietrich v The Queen:¹⁰⁷

Inevitably, compliance with the law’s overriding requirement that a criminal trial be fair will involve some appropriation and expenditure of public funds: for example, the funds necessary to provide an impartial judge and jury; the funds necessary to provide minimum court facilities; the funds necessary to allow committal proceedings where such proceedings are necessary for a fair trial. On occasion, the appropriation and expenditure of such public funds will be directed towards the provision of information and assistance to the accused: for example, the funds necessary to enable adequate pre-trial particulars of the charge to be furnished to the accused; the funds necessary to provide an accused held in custody during a trial with adequate sustenance and with minimum facilities for consultation and communication; the funds necessary to provide interpreter services for an accused and an accused’s witnesses who cannot speak the language. Putting to one side the special position of this Court under the Constitution, the courts do not, however, assert authority to compel the provision of those funds or facilities. As Barton v The Queen (1980) 147 CLR 75, at pp 96, 103, 107, 109 establishes, the effect of the common law’s insistence that a criminal trial be fair is that, if the funds and facilities necessary to enable a fair trial to take place are withheld, the courts are entitled and obliged to take steps to ensure that their processes are not abused to produce what our system of law regards as a grave miscarriage of justice, namely, the adjudgment and punishment of alleged criminal guilt otherwise than after a fair trial. If, for example, available interpreter facilities, which were essential to enable the fair trial of an unrepresented person who could neither speak nor understand English, were withheld by the government, a trial judge would be entitled and obliged to postpone or stay the trial and an appellate court would, in the absence of extraordinary circumstances, be entitled and obliged to quash any conviction entered after such an inherently unfair trial.

As a practical matter, if an accused is unable to afford an interpreter, and if the court or an agency of government does not provide an appropriate interpreter at its expense, the trial cannot proceed either at all, or until an interpreter is provided.

1.3.2 How should a judicial officer discharge the duty to ensure an interpreter for an accused who cannot understand or be understood in court proceedings?

In criminal trials, the judicial officer must ensure that the accused understands the language of the court before the accused enters a plea. If there is any doubt about this, 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 counsel. The judicial officer should also investigate the processes used by police to caution and interview a respondent with limited English proficiency.

The duty to ensure an interpreter is available applies both where the accused is represented or self-represented. However, if the accused is legally represented and waives their entitlement to an interpreter, the court may proceed without an interpreter if the court is satisfied that the accused is aware of the evidence to be called and is substantially aware of the case being made against them.¹⁰⁸

The accused’s right to an interpreter at their trial is intended to cover the whole of the proceedings. Thus, not only must the interpreter be available when the accused is arraigned and asked to plead to the charge, but the interpreter must interpret everything that is said in the courtroom whether by counsel, witnesses or the trial judge, as well as the accused’s evidence if they decide to give evidence.

As the trial progresses, counsel or the instructing solicitor for the accused may need to speak to the accused to take instructions on matters which have arisen during the trial. The trial judge’s summing up to the jury and any jury questions must be interpreted. If there is a voir dire, the accused must be present and whatever is said must also be interpreted. If there are legal arguments in court, whatever is said by counsel or the trial judge must also be interpreted. When the verdict is announced, that too must be interpreted, as must all aspects of a sentencing hearing.

These fundamental rights cannot be waived where the accused is not represented by counsel.

The right to be linguistically present at a criminal trial has been recognised in other jurisdictions abroad. As the Supreme Court of New Zealand explained in Chala Sani Abdula v The Queen,¹⁰⁹ after holding that the standard of the right to an interpreter enshrined in the provisions of the Bill of Rights of that country was informed by the common law:

That standard must reflect the accused person’s entitlement to full contemporaneous knowledge of what is happening at the trial. Interpretation will not be compliant if, as a result of its poor quality, an accused is unable sufficiently to understand the trial process or any part of the trial that affects the accused’s interests, to the extent that there was a real risk of an impediment to the conduct of the defence. This approach maintains and demonstrates the fairness of the criminal justice process which is necessary if it is to be respected and trusted in our increasingly multicultural community.¹¹⁰

The same conclusion was reached by the Supreme Court of Canada in Quoc Dun Tran v The Queen (‘Tran’).¹¹¹ Tran was a case involving a right to an interpreter which is constitutionally enshrined in s 14 of the Canadian Charter of Rights and Freedoms. Section 14 provides that “A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.” In considering the proper interpretation to be given to s 14 of the Charter, the Court considered the common law principles which are applicable to a criminal trial.

Fundamentally, the right stemmed from the necessity at common law for the accused to be present during the whole of his trial, unless there were exceptional circumstances. This right was enshrined in s 650 (1) of the Criminal Code (Canada). Presence at the trial meant more than mere corporeal presence; it meant that the party must have the ability to understand the proceedings. The Court referred to an earlier decision of the Court of Appeal of Ontario, R v Hertrich¹¹² saying:

The case of Hertich is important because it makes it clear that an accused need not demonstrate any actual prejudice flowing from his or her exclusion from the trial – i.e., that he or she was in fact impeded in his or her ability to make full answer and defence. Prejudice is a sufficient but not a necessary condition for a violation of the right to be present under s 650 of the Code. For a violation of the right to be present under s 650 to be made out, it is enough that an accused was excluded from a part of the trial which affected his or her vital interests. Importantly, the two rationales provided in Hertich for the right of an accused to be present at his or her trial – i.e., full answer and defence, and first-hand knowledge of proceedings which affect his or her vital interests – need not necessarily overlap. For instance, as was the case in Hertich, there will be situations where an accused’s right to full answer and defence is not prejudiced, but his or her right to first-hand knowledge of proceedings affecting his or her vital interests is negatively affected.¹¹³ [emphasis added in Quoc Dun Tran v The Queen judgment]

The Court in Tran also quoted with approval¹¹⁴ the following passage from the American decision of the Second Circuit Court of Appeals, Negron v New York¹¹⁵:

…the right that was denied Negron seems to us even more consequential than the right of confrontation. Considerations of fairness, the integrity of the fact-finding process, and the potency of our adversary system of justice forbid that the state should prosecute a defendant who is not present at his own trial, unless by his own conduct he waives that right. And it is equally imperative that every criminal defendant – if the right to be present is to have any meaning – possess “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” Otherwise, “[t]he adjudication loses its character as a reasoned interaction and becomes an invective against an insensible object.”

[Citations omitted; emphasis in the original]

The Court in Tran went on to observe:

It is clear that the right to the assistance of an interpreter of an accused who cannot communicate or be understood for language reasons is based on the fundamental notion that no person should be subject to a Kafkaesque trial which may result in loss of liberty. An accused has the right to know in full detail, and contemporaneously, what is taking place in the proceedings which will decide his or her fate. This is basic fairness. Even if the trial is objectively a model of fairness, if an accused operating under a language handicap is not given full and contemporaneous interpretation of the proceedings, she or he will not be able to assess this for him or herself. The very legitimacy of the justice system in the eyes of those who are subject to it is dependent on their being able to comprehend and communicate in the language in which the proceedings are taking place.¹¹⁶

In De La Espreilla-Velasco v The Queen¹¹⁷ the Court of Appeal of Western Australia considered the question of the extent to which the assistance of an interpreter may be required during a criminal trial in Australia where, unlike Canada, there is no constitutional right to an interpreter. After reviewing the authorities at some length, Roberts-Smith JA said:

…the task of an interpreter is not restricted merely to passing on the questions when the party is giving evidence, but must be extended to also apprising a party of what is happening in the court and what procedures are being conducted at a particular time. It is quite wrong to imagine that all an interpreter is supposed to do is to interpret questions for a person in the witness box.¹¹⁸

After referring to Tran, and in particular to the passage where the Court held that the appellant needed to show that the lapse in interpretation in that case “occurred in the course of the proceedings where the vital interest of the accused was concerned, that is to say, while the case was being advanced, other that at some extrinsic or collateral point”¹¹⁹ Roberts-Smith JA said:

The first complaint made here is that there was a lack of continuity in that the interpreter failed to interpret, or did not completely and accurately interpret, discussions between the judge and counsel. For the reasons I have explained, it would not be sufficient for the appellant merely to demonstrate a lack of continuity in this sense. It must be shown that as a consequence of that deficiency, either alone or in combination with some other deficiency, the trial was unfair – and that it was so unfair as to constitute a miscarriage of justice. Furthermore, unlike the situation in Tran where the breach of a constitutionally guaranteed right itself inevitably amounted to a substantial miscarriage of justice, a conviction may yet not be set aside if the respondent were to satisfy the court that there was no substantial miscarriage of justice.¹²⁰

1.3.3 When should an accused’s application for an interpreter be granted?

The evidential burden of establishing the need for an interpreter rests upon the party or witness seeking to have the court to exercise its discretion in their favour. In most cases this is not an issue because the legal representatives of the parties will usually be well aware of the English competence of the person concerned.

In criminal proceedings, if the person seeking an interpreter is the defendant, the court is likely to readily grant the application whenever it is asked for. However, if it becomes an issue, the Court will have to decide that question on a voir dire (i.e. a hearing in the absence of the jury).

Although the authorities suggest that the trial judge has a discretion whether or not to allow a witness to utilise an interpreter,¹²¹ the courts have said that prima facie an interpreter should be allowed whenever English is not the accused’s first language and the accused has asked for the assistance of an interpreter. As a matter of practice and procedure, a court is likely to approach the question prudentially, so that proof of the need for an interpreter may not necessarily even involve satisfaction on the balance of probabilities. That position is to be distinguished from the situation where the degree of a person’s competence in the English language is a fact in issue in the proceedings, where the applicable standard of proof will apply. As the Supreme Court of New Zealand said in Chala Sani Abdulla v The Queen said:

[45] It is not in dispute that the appellant needed, and was entitled to, interpretive assistance. The threshold for need is not an onerous one. As a general rule, an interpreter should be appointed where an accused requests the services of an interpreter and the judge considers the request justified, or where it becomes apparent to the judge that an accused is having difficulty with the English language. Once an accused has asked for assistance, it ought not to be refused unless the request is not made in good faith or the assistance is otherwise plainly unnecessary.¹²²

When taking into account whether or not a person requires an interpreter, especially a person who may appear to speak and understand English, Kirby P (as his Honour then was) warned in Adamopoulos and Another v Olympic Airways SA that:

The mere fact that a person can sufficiently speak the English language to perform mundane or social tasks or even business obligations at the person’s own pace does not necessarily mean that he or she is able to cope with the added stresses imposed by appearing as a witness in a court of law. … Those who, in formal public environments of which courts are but one example, have struggled with their own imperfect command of foreign languages will understand more readily the problem then presented. The words which come adequately in the relaxed environment of the supermarket disappear from recollection. The technical expressions cannot be recalled, if ever they were known. The difficulties cause panic. A relationship in which the speaker is in command (as when dealing with friends or purchasing or selling goods and services) is quite different from a potentially hostile environment of a courtroom. There, questions are asked by others, sometimes at a speed and in accents not fully understood…Particularly in Australia, which claims a multi-cultural society, courts should strive to ensure that no person is disadvantaged by the want of an interpreter if that person’s first language is not English and he or she requests that facility to ensure that justice is done.¹²³

Thus in R v Wurramara¹²⁴, Blokland J in the Northern Territory Supreme Court, after referring to Adamopolous, said:

There are parallels with the principles well established and developed from R v Anunga, [(1976) 11 ALR 412] where the Court laid down judicial guidelines for police interviews with Aboriginal suspects. The guidelines apply so as to require an interpreter unless the Aboriginal person “is as fluent in English as the average white man of English descent.” Mr. Wurramarra is obviously [not] within that category and therefore it is unlikely a fair trial will be provided unless he has an interpreter.¹²⁵

That said, a discretion must always be reserved to the trial judge to balance the inconvenience occasioned by a late application for an interpreter; the possibility that the application has been made for extraneous or ulterior purposes; and an assessment in that in the particular case as to whether an interpreter is needed for the issues involved. As explained in the above Standards, a judge who declines interpretive assistance where it is requested should document their reasons for doing so: see Annotated Standards at 15.2.

1.3.4 What are the consequences of refusing a request for an interpreter or poor interpretation on trial proceedings?

If the court in the exercise of its discretion refuses to permit a party or a witness to give evidence in criminal proceedings through an interpreter, the decision may be appealed. However, as the decision is interlocutory, leave to appeal would be required.

This presents a practical difficulty because usually the decision would have been made during the course of the proceedings, and in order to challenge the decision, the court might have to be persuaded to grant an adjournment to enable the application for leave to be heard. If it is likely that there is to be a dispute about whether or not a witness or party is to be permitted to give evidence through an interpreter, it may be wise to have the matter ruled upon in advance of the trial if that procedure is available. There is also a second difficulty, in that courts are reluctant to hear leave applications on interlocutory matters in criminal proceedings before the trial is over, although there are rare exceptions. The third difficulty which might arise is that the person refused leave may not be a party.

However, in Witness v Marsden¹²⁶ it was held that – in civil proceedings at least – a witness has standing to obtain leave to appeal against the discretionary order of a judge to refuse to make a pseudonym order. Although the trial in that case was into its 115^th day, the Court of Appeal of New South Wales granted leave and allowed the appeal.

If the matter is not able to be resolved before the trial is completed, and the defendant is convicted, the defendant could apply for leave to appeal the order if the witness was either the defendant or a defence witness. If the defendant is acquitted, the prosecution cannot appeal the conviction and it would seem pointless for the prosecution to seek to appeal the order in those circumstances even though technically the prosecution could seek a reference of the matter to the Court of Criminal Appeal if there were a question of law to be determined.¹²⁷

Finally, even if a trial proceeds with an interpreter, deficiencies in the quality of the interpretation may give rise to a ground for appeal where it can be shown that the trial was unfair as a result of those deficiencies.

In R v Tan¹²⁸, the Queensland Court of Appeal overturned the accused’s conviction and ordered a re-trial on the basis that the absence of his interpreter for part of the trial compromised its fairness and occasioned a miscarriage of justice.

1.3.5 Deaf jurors

In Lyons v Queensland [2016] HCA 38 the High Court held that a deaf juror who required the services of Auslan interpreters to communicate with other persons was not eligible for jury service in Queensland. This was because Queensland law did not permit the interpreters to be present while the jury was being kept apart to consider the verdict. Nor was there any power to administer an oath to an interpreter who was assisting a juror.

On 26 April 2018, amendments to the Juries Act 1967 (ACT) commenced to facilitate the participation of deaf jurors in that jurisdiction.¹²⁹ In specified circumstances, judges must consider if support that would enable the person to properly discharge the duties of a juror can reasonably be given.¹³⁰ Section 16(2) lists “an interpreter, including an Auslan interpreter” as an example of relevant “support”.

At common law, a party or witness whose English skills are lacking may apply to the court or tribunal to give evidence through an interpreter. The court or tribunal has a discretion to allow the interpreter if the party or witness is at a disadvantage.¹³¹ The principles to be applied are similar to those in criminal proceedings. A party to civil proceedings has a right to have an interpreter present in the hearing room at their own expense to interpret the proceedings to that party as they unfold.

In Gradidge v Grace Brothers Pty Ltd¹³² the extent of the right to an interpreter was considered by the Supreme Court of New South Wales. In that case, the plaintiff was a deaf woman who had the assistance of an interpreter in an application for compensation before the Compensation Court. During the course of her evidence, objection was taken to a question asked in examination in chief, whereupon argument ensued between counsel and the trial judge. At the request of counsel for the respondent, the trial judge instructed the interpreter not to interpret what was being said between counsel and the bench. A case was stated as to whether the trial judge had erred in giving this direction. The Court of Appeal unanimously held that the trial judge’s ruling was in error. The plaintiff as a party was entitled to have whatever was said in open court interpreted to her unless she had been excluded from the courtroom.

However, there is no strict principle that the matter cannot proceed in the absence of an interpreter, as there is in criminal proceedings. A party who is represented by counsel cannot be heard to complain if they needed an interpreter and through their own fault failed to secure one. However, different considerations might arise if the party were unrepresented, or if the party made a diligent attempt to find an interpreter but was unsuccessful.

All courts are required to observe the rules of procedural fairness (or natural justice as the rules are also known) and in particular the audi alteram partem rule, that is, that each party is given an opportunity to make submissions and lead evidence including to respond to the evidence against them. Consequently, it would be inimical to natural justice for a civil court or tribunal to proceed in such a way as to prevent a party from giving or calling evidence due to the absence of an interpreter. In the absence of some statutory power for the court or tribunal to appoint and pay for an interpreter, the only remedy would be for the court or tribunal to grant an adjournment until the party was able to engage an interpreter at their own expense.

Absent statutory abrogation or derogation from the common law requirements of procedural fairness, it is a jurisdictional error for an administrative tribunal to fail to comply with the requirement to afford to a person whose interests are affected by a decision an opportunity to deal with matters adverse to their interests which the decision-maker proposes to take into account.¹³³ As the error is jurisdictional, it will invalidate the decision made in breach of procedural fairness.¹³⁴ However, not all administrative tribunals are bound to afford the individual procedural fairness in line with common law requirements. In some cases, those requirements have been replaced by statutory codes which prescribe set rules and may afford greater or lesser rights to procedural fairness than at common law.¹³⁵ These may include an express or implied requirement for an interpreter to be engaged where the affected individual requires or requests such assistance. In such cases, the question whether a failure to comply with such a requirement constitutes a jurisdictional error which invalidates the decision will depend upon the proper construction of the law in question.¹³⁶ For some tribunals, the obligation to accord with the requirements of procedural fairness may also be included in their constituent legislation or any human rights legislation in the applicable jurisdiction.

Where a curial or administrative hearing proceeds with an interpreter and as is the case in criminal proceedings, questions may arise as the effect of mistranslation. In the context of administrative decision-making, it has been observed that those questions “cannot be answered though the application of a simple or uniform mode of analysis”.¹³⁷ In DVO16 v Minister for Immigration and Border Protection,¹³⁸ a majority of the High Court of Australia affirmed that:

Whether and if so in what circumstances mistranslation might result in invalidity of an administrative decision turns necessarily on whether and if so in what circumstances mistranslation might result in non-compliance with a condition expressed in or implied into the statute which authorises the decision-making process and sets the limits of decision-making authority.¹³⁹

The High Court elaborated that the effect of mistranslation in a decision-making process conditioned by the requirement to afford procedural fairness will turn on whether the result has been unfairness amounting to “practical injustice”. In contrast, where the duty to provide procedural fairness is excluded or sufficiently met in specified circumstances, the effect of a mistranslation will turn on whether the mistranslation has resulted in non-compliance with specific statutory requirements and may ultimately constitute jurisdictional error.¹⁴⁰ With respect to the former, the Full Court of the Federal Court of Australia has indicated that an unsuccessful party cannot rely on an interpreter’s lack of specified accreditation (such as NAATI accreditation) to make out procedural unfairness in the absence of clearly identified (and material) deficiencies in interpreting.¹⁴¹

In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17,¹⁴² the High Court drew a distinction between “general fairness” and the independent legal duty to afford procedural fairness. At the Federal Circuit Court hearing, the first respondent had been self-represented and assisted by an interpreter. While the primary judge’s final orders were interpreted, his ex tempore reasons were not and the first respondent did not receive a transcript. Written reasons were published in English subsequent to the first respondent commencing appeal proceedings.¹⁴³ The High Court overturned the Federal Court’s decision that the failure to interpret the ex tempore reasons amounted to a denial of procedural fairness necessitating a re-hearing by another judge. It was accepted that as a matter of general fairness, the first respondent ought to have had the benefit of interpreted ex tempore reasons or translated written reasons at an earlier point in time.¹⁴⁴ However, the High Court held that adjourning the hearing of the appeal to allow the transcript to be obtained or inviting the first respondent to amend his grounds of appeal to address the contents of the published reasons would have supplied the necessary “practical justice or fairness” in the conduct of the Federal Court proceeding.¹⁴⁵

Access and equity considerations form part of the multicultural policies of the Commonwealth and State and Territory governments, although policy terminology differs between jurisdictions. In some jurisdictions multicultural and associated access policies are legislatively based, in others they are policy based.

Relevant legislation includes:

• Commonwealth – Racial Discrimination Act 1975, Disability Discrimination Act 1992 and Australian Human Rights Commission Act 1986;
• Australian Capital Territory – Human Rights Act 2004 and Discrimination Act 1991;
• New South Wales – Community Relations Commission and Principles of Multiculturalism Act 2000 and Anti-Discrimination Act 1977;
• Northern Territory – Anti-Discrimination Act 1996;
• Queensland – Multicultural Recognition Act 2016, Anti-Discrimination Act 1991 and Human Rights Act 2019;
• South Australia – Equal Opportunity Act 1984 and South Australian Multicultural and Ethnic Affairs Commission Act 1980;
• Tasmania – Anti-Discrimination Act 1998;
• Victoria – Charter of Human Rights and Responsibilities Act 2006, Equal Opportunity Act 2010 and Multicultural Victoria Act 2011; and
• Western Australia – Equality Opportunity Act 1984.

Government policy frameworks about the provision of language assistance to services include:

• Commonwealth Australian Government Language Services;¹⁴⁶
• Australian Capital Territory Language Services Policy;¹⁴⁷
• New South Wales Government’s Multicultural Policies and Services Programme;¹⁴⁸
• Northern Territory Language Services Policy;¹⁴⁹
• Queensland Government Language Services Policy;¹⁵⁰
• South Australian Government Interpreting and Translating Policy for Migrant and Non-Verbal (Sign) Languages;¹⁵¹
• Victorian Language Services Policy;¹⁵² and
• Western Australia Language Services Policy.¹⁵³

A convention across policies is that the government agency or third-party service provider is responsible for providing a competent interpreter free of charge, and should take steps to ensure competent interpreters are available when required.

Courts need to determine responsibility to pay for interpreting in the context of relevant legislation and access and equity policies and guidelines in their jurisdiction. For example, the Federal Court of Australia will provide a court-funded interpreter to a party if they are represented under a recognised pro bono scheme or entitled to an exemption from (or reduction of) court fees under the Court’s regulations. Individuals in immigration detention fall within the latter category, even if they are privately legally represented.¹⁵⁴