Table of Contents

Chapters

Model Rules

Division 1: Definitions

1.1

In these Rules:

“accurately” means resulting in the optimal and complete transfer of the meaning of the other language into English and of English into the other language, preserving the content and intent of the other language or English (as the case may be) without omission or distortion and including matters which the interpreter may consider inappropriate or offensive.

“code of conduct” means the Code of Conduct for Interpreters in Legal Proceedings set out in Schedule 1.

“interpret” means the process whereby spoken or signed language is conveyed from one language (the source language) to another (the target language) orally.

“other language” means a spoken or signed language other than English.

“recognised agency” means the National Accreditation Authority for Translators and Interpreters (NAATI) and such other organisations as are approved by the Head of Jurisdiction.

“sight translate” means the process whereby an interpreter or translator presents a spoken interpretation of a written text.

“translate” means the process whereby written language is conveyed from one language (the source language) to another (the target language) in the written form.

Division 2: Proceedings to be conducted in English

2.1

Subject to these Rules, proceedings in the Court/Tribunal are conducted in English.

Division 3: When interpreters may be required

3.1

If the Court/Tribunal is satisfied that a party cannot understand and speak the English language sufficiently to enable the party to understand, and to make adequate reply to, questions that may be put to the party, then the party may give:

  1. oral evidence in the other language which is interpreted into English by an interpreter in accordance with these rules;
  2. evidence by an affidavit or statement in English which has been sight translated to the witness by an interpreter.

3.2

The party calling a witness who requires the services of an interpreter is responsible for engaging an interpreter in accordance with these rules, unless that party is an accused person in criminal proceedings in which case the Court will cause an interpreter to be engaged in accordance with these Rules, or if the court or tribunal has an obligation or policy to arrange interpreters for parties on request.

3.3

In any criminal proceedings, if the Court is satisfied that the accused cannot understand and speak the English language sufficiently to enable the accused:

  1. to understand and participate in the proceedings; or
  2. to understand, and to make adequate reply to, questions that may be put to the accused, then the Court must ensure that the accused is provided with an interpreter.

3.4

In any civil proceedings, if the Court/Tribunal is satisfied that a party cannot understand and speak the English language sufficiently to enable the party to understand and participate in the proceedings, the Court/Tribunal must permit that party to engage the services of an interpreter who meets the standards and requirements imposed by these rules, if the interpreter is to be engaged by that party to communicate with the Court/Tribunal (but not otherwise).

Division 4: Who may carry out the office of interpreter

4.1

Subject to rules 3.4 and 4.2, to carry out the office of interpreter a person must:

  1. be currently certified, registered or recognised as an interpreter for the other language by a recognised agency or otherwise satisfy the Court/Tribunal that they are qualified to carry out the office of interpreter; and
  2. have read and agreed to comply with the Code of Conduct; and
  3. swear or affirm to interpret accurately to the best of their ability; and
  4. not be a person who:
    1. is or may become a party to or a witness in the proceedings or proposed proceedings (other than as the interpreter); or
    2. is related to or has a close personal relationship with a party or a member of the party’s family or with a witness or potential witness; or
    3. has or may have a financial or other interest of any kind whatsoever in the outcome of the proceedings or proposed proceedings (other than an entitlement to a reasonable fee for the services provided by the interpreter in the course of their engagement or appointment); or
    4. is or may be unable to fulfil their duty of accuracy or impartiality under the code of conduct for any reason including, without limitation, personal or religious beliefs, or cultural or other circumstances; and
  5.  cease to carry out the office of interpreter if they become aware of any of the disqualifying matters referred to in sub-rule (4) during a hearing and immediately disclose this to the Court/Tribunal.

4.2

In exceptional circumstances or where all reasonable efforts have failed to identify a person who satisfies the requirements of rule 4.1, the Court/Tribunal may grant leave for any person (whether or not related or known to the witness, a party or the accused) to carry out the office of interpreter under these rules even though that person may not satisfy one or more of the requirements of rule 4.1, provided that:

  1. the Court/Tribunal is satisfied that because of their specialised knowledge based on their training, study or experience that person is able to interpret and, if necessary, sight translate accurately to the level the Court/Tribunal considers satisfactory in all the circumstances from the other language into English and from English into the other language;
  2. the person swears or affirms to interpret accurately to the best of their ability;
  3. the Court/Tribunal is satisfied that the person understands and accepts that in carrying out the office of interpreter they are not the agent, assistant or advocate of the witness, the party or an accused but are acting as an officer of the Court or Tribunal owing a paramount duty only to the Court/Tribunal to be impartial and accurate to the best of their ability;
  4. the Court/Tribunal directs that the evidence and interpretation be sound recorded for spoken languages, and video recorded for sign languages; and
  5. the person is over the age of 18 years.

Division 5: What is the function of the interpreter

5.1

An interpreter is an officer of the court or tribunal in the sense that they owe to the court or tribunal 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.

5.2

Unless the Court/Tribunal otherwise orders, an interpreter must:

  1. interpret questions and all other spoken or signed communications in the hearing of the proceedings for the party or accused from English into the other language and from the other language into English; and
  2. subject to rule 5.3, before or during the course of the witness’ evidence translate at sight written words shown to the witness.

5.3

An interpreter may decline to sight translate if the interpreter considers that 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 text.

5.4

Unless the Court/Tribunal otherwise orders, an interpreter may not assist a party or that party’s legal representatives in their conduct of proceedings or proposed proceedings other than by interpreting questions and all other spoken or signed communications or translating at sight documents in connection with the proceedings or proposed proceedings (including the hearing) for the party from English into the other language and from the other language into English.

Division 6: Code of conduct for interpreters

6.1

Subject to rules 3.4 and 4.2, an interpreter must comply with the Code of Conduct.

6.2

Unless the Court otherwise orders, as soon as practicable after an interpreter is engaged in proceedings or proposed proceedings then the engaging party or, in the case of an interpreter appointed by the Court, the Court must provide the interpreter with a copy of the Code of Conduct.

6.3

Unless the Court/Tribunal otherwise orders and subject to rules 3.4 and 4.2, the evidence of a witness may not be received through an interpreter unless the Court/Tribunal is satisfied that the interpreter has read the Code of Conduct and agreed to be bound by it.

Division 7: Evidence adduced through interpreters

7.1

Where the witness is giving evidence by an affidavit or statement then, unless otherwise ordered:

  1. the party wishing to read that affidavit or statement is not entitled to rely on that affidavit or statement unless it includes certification by the interpreter, or the interpreter separately verifies by affidavit, to the effect that:
    1. prior to sight translating the affidavit or statement to the witness, the interpreter:
      1. had read the code of conduct and agreed to be bound by it; and
      2. had been given an adequate opportunity to prepare to sight translate the affidavit or statement;
    2. the interpreter sight translated the entire affidavit or statement to the witness, who then:
      1. informed the person responsible for the preparation of the affidavit or statement through the interpreter that they had understood the interpreter and agreed with the entire contents of the affidavit or statement; and
      2. then swore or affirmed the affidavit or signed the statement in the presence of the interpreter;
  2. the interpreter referred to in rule 7.1(1) may, but is not required to, be the interpreter who interprets for that witness in any hearing in the proceedings.

7.2

The Court/Tribunal may at any time, either of its own motion or on the application of a party, request the interpreter to correct, clarify, qualify or explain the interpreter’s interpretation of the evidence or translation at sight of a document.

7.3

Any clarification, qualification or explanation given by the interpreter in response to a request under rule 7.2 is not evidence of the interpreter in the proceedings.

Division 8: Court may give directions concerning interpreters

8.1

Without limiting the generality of the Court or Tribunal’s powers to control its own procedures, the Court/Tribunal may at any time make directions concerning all or any of the following having regard to the nature of the proceedings (including the type of allegations made and the characteristics of the parties and witnesses):

    1. any particular attributes required or not required for an interpreter, including, without limitation, gender, age, ethnic, cultural or social background so as to accommodate any cultural and other reasonable concerns of a party, the witness or accused;
    2. the number of interpreters required in any proceedings and whether relay interpreting should be used;
    3. establishing the expertise of an interpreter;
    4. the steps to be taken to obtain an interpreter who is certified, registered or recognised by a recognised agency or is otherwise qualified to carry out the office of interpreter;
    5. the steps to be taken before an application under rule 4.2 is made;
    6. what information concerning the proceedings (including, without limitation, pleadings, affidavits, lists of witnesses and other documents) may be provided to a person in advance of any hearing to assist that person to prepare to carry out the office of interpreter at that hearing;
    7. when, in what circumstances and under what (if any) conditions the information referred to in rule 8.1(f) may be provided;
    8. whether the interpreter is to interpret the witness’s evidence consecutively, simultaneously or in some other way;
    9. other resources such as dictionaries or other reference works which the interpreter may require to consult in the course of carrying out the office of interpreter;
    10. the length of time for which an interpreter should interpret during a hearing without a break;
    11. security for the interpreter including, where necessary, arrangements to preserve the anonymity of the interpreter;
    12. practical matters concerning the interpreter such as seating for and the location of the interpreter;
    13. disqualification, removal or withdrawal of an interpreter including on the application of the interpreter, any party to the proceedings or by the Court/Tribunal of its own motion; and
    14. payment of interpreters.

 

8.2

In making any order or direction in relation to interpreters the Court/Tribunal must have regard to any practice note on interpreters approved by the Court/Tribunal for use with these rules.

8.3

These rules apply subject to the provisions of the Evidence Act, or any other evidentiary provisions or customs applicable to the Court/Tribunal.

Schedule 1 – Code of Conduct for Interpreters in Legal Proceedings

1.

Application of code

This Code of Conduct applies to any person (the “Interpreter”) who whether or not for fee or any other reward is engaged, appointed, volunteers or otherwise becomes involved in proceedings or proposed proceedings to carry out the office of interpreter by interpreting or sight translating from any spoken or signed language (the “other language”) into English and from English into the other language for any person.

2.

General duty to the Court or Tribunal

  1. An Interpreter has an overriding duty as an officer of the Court/Tribunal to assist the Court/Tribunal impartially.
  2. An Interpreter’s paramount duty is to the Court/Tribunal and not to any party to or witness in the proceedings (including the person retaining or paying the Interpreter).
  3. An Interpreter is not an advocate, agent or assistant for a party or witness.

3.

Duty to comply with directions
An Interpreter must comply with any direction of the Court/Tribunal.

4.

Duty of accuracy

  1. An Interpreter must at all times use their best judgment to be accurate in their interpretation or sight translation. In this code “accurate” means the optimal and complete transfer of the meaning of the other language into English and of English into the other language, preserving the content and intent of the other language or English (as the case may be) without omission or distortion and including matters which the interpreter might consider inappropriate or offensive.
  2. If an Interpreter considers that their interpretation or sight translation is or could be in any way inaccurate, incomplete or requires qualification or explanation (including, without limitation, where the other language is ambiguous or otherwise unclear for any reason), then:
    1. the Interpreter must immediately inform the party who engaged them and provide the necessary correction, qualification or explanation to that party; and,
    2. if their evidence is being given or was given in Court, immediately inform the Court and provide the necessary correction, qualification or explanation to the Court.

5.

Duty of impartiality

  1. An Interpreter must at all times carry out the office of interpreter impartially so as to be without bias in favour of or against any person including but not limited to the person whose evidence the interpreter is interpreting, the party who has engaged or is remunerating the Interpreter or any other party to or person involved in the proceedings or proposed proceedings.
  2. Unless the Court/Tribunal orders otherwise, an Interpreter must not accept an engagement or appointment to carry out the office of interpreter in relation to a proceeding or proposed proceeding if the Interpreter:
    1. is or may become a party or a witness;
    2. is related to or has a close personal relationship with a party or a member of the parties, or with a witness or potential witness;
    3. has or may have a financial or other interest of any kind whatsoever in the outcome of the proceeding or proposed proceeding (other than an entitlement to a reasonable fee for the services provided by the Interpreter in the course of their engagement or employment); or
    4. is or may be unable to fulfil their duty of accuracy or impartiality for any reason including, without limitation, personal or religious beliefs and cultural and other reasonable concerns.
  3. Other than carrying out their engagement or appointment in the office of interpreter, an Interpreter must not provide any other assistance, service or advice (including by way of elaboration) to:
    1. the party, legal representative or other person who has engaged them; or
    2. any witness or potential witness, in relation to the proceeding or proposed proceeding.

6.

Duty of competence

An Interpreter must only undertake work they are competent to perform in the languages for which they are qualified by reason of their training, qualifications or experience. If it becomes apparent in the course of a matter that expertise beyond their competence is required, the Interpreter must inform the Court/Tribunal immediately and work to resolve the situation, either withdrawing from the matter or following another strategy acceptable to the Court/Tribunal.

7.

Confidentiality

Subject to compulsion of law, an Interpreter must keep confidential all information in any form whatsoever which the interpreter acquires in the course of their engagement or appointment in the office of interpreter (including any communication subject to client legal privilege) unless:

  1. that information is or comes into the public domain other than by an act of the interpreter in breach of this duty of confidentiality; or
  2. the beneficiary of the client legal privilege has waived that privilege.