Recommended national standards for working with interpreters in courts and tribunals1

Stephanie Olbrich2

The Judicial Council on Diversity and Inclusion (JCDI) produced the Recommended National Standards for Working with Interpreters in Courts and Tribunals3 in 2017, which was reviewed and updated in 2022, to establish recommended and optimal practices for working with interpreters. The following article surveys this resource and summarises how it can assist judicial officers and the courts to work effectively with interpreters.

Australia is a culturally diverse nation. Aboriginal and Torres Strait Islander people number around 3% of the total population while 26% of Australians are born overseas.4

With over 300 languages spoken in Australian households,5 it’s not uncommon for people coming before the courts to need an interpreter. The work of interpreters is essential to ensuring access to justice and procedural fairness for people with limited or no English proficiency in Australia’s courts.

The Council of Chief Justices has recommended this resource as a way of improving access to justice and promoting procedural fairness.

Overview of the recommended standards

Effective communication in courts is a responsibility shared between judicial officers, courts, interpreters and legal practitioners. As such the recommended standards are directed to each of these key stakeholders.

Recommended standards for judicial officers

The recommended standards for judicial officers concentrate on those aspects that are within the scope of the judicial officer to implement, including:

  • assessing the need for an interpreter

  • conducting proceedings with an interpreter, and

  • undertaking training for working with interpreters.

Assessing the need for an interpreter

It is important that judicial officers raise the topic of working with an interpreter in a sensitive manner. There are a number of reasons a party might say they do not want to work with an interpreter, including ignorance of an interpreter’s role, past negative experiences with interpreters, shame that their English is “not good enough”, or not wanting others to know about their business.6

Annexure 4 of the recommended standards outlines a useful four-part test to assess a person’s ability to understand and speak in English, with the aim of determining the need for an interpreter.7

If the party or witness has difficulties understanding or speaking in English at any point, or if the person asks for an interpreter, the judicial officer should stop the discussion and arrange for an interpreter to be present.

Conducting proceedings with an interpreter

After it has been determined that an interpreter is required, a judicial officer can assist the interpreter in several ways. Annexure 5 of the recommended standards summarises how a judicial officers can assist,8 including:

  • Briefing interpreters: In making directions as to the conduct of proceedings, the judicial officer should consider whether and to what extent interpreters should be briefed by the parties on the nature of the matter prior to the commencement of proceedings. Briefing may include provision of materials that may otherwise require sight translation in court.9

  • Logistics: Where circumstances permit, judicial officers should ensure that the court has provided the interpreter with somewhere to wait, leave their belongings, prepare materials and be briefed and debriefed. In the courtroom, interpreters need to be able to see and hear all parties in the court, and have as a minimum a chair and table and sufficient room to work, and access to a jug of water and a glass.10

  • Introducing the interpreter: Before an interpreter commences interpreting, the judicial officer should ask the interpreter to introduce themselves and state their level of National Accreditation Authority for Translators and Interpreters Ltd (NAATI) accreditation or certification, interpreting qualifications, membership of a professional interpreting association, court experience, and understanding of their ethical obligations.11

  • Interrupting proceedings: At the start of proceedings, the judicial officer should also ask the interpreter to alert the court, and if necessary to interrupt, if the interpreter:

    (i) 

    did not accurately hear what was said

    (ii) 

    cannot interpret a question or answer for any reason

    (iii) 

    needs to consult a dictionary or reference material

    (iv) 

    needs a concept or term explained

    (v) 

    needs to correct an error

    (vi) 

    is unable to keep up with evidence, or

    (vii) 

    needs a break.12

  • Speaking style: A judicial officer should use plain English to communicate clearly and articulately during court proceedings.13 It is the judicial officer’s role to explain all legal concepts, jargon, acronyms and technical terms, not the interpreter’s. Annexure 3 of the recommended standards provides some useful plain English strategies.14 Judicial officers should also speak slowly and clearly, and with appropriate pauses, to help facilitate the interpreter to discharge his or her duty to interpret.15

  • Breaks for interpreters: Interpreting is demanding work; therefore, interpreters need to have regular breaks during proceedings, eg every 45 minutes for spoken language interpreters and every 20 minutes for signed language interpreters.16

  • Conflict of interest: If a judicial officer becomes aware that an interpreter has a conflict of interest in the proceedings, he or she should permit the interpreter to withdraw from the proceedings if necessary and adjourn the proceedings until another interpreter can be found or to consider another appropriate way to address the conflict.17

  • Debriefing interpreters: Ideally an interpreter should have access to counselling or debriefing following proceedings, as interpreters may be vulnerable to vicarious trauma and secondary stress when interpreting sensitive or distressing material.18

Training for working with interpreters

It is recommended that judicial officers undertake training on assessing the need for an interpreter and working with interpreters in accordance with the recommended standards, as and when this training is available.19

Recommended standards for courts

The recommended standards for courts20 centre on steps than can be taken from an institutional perspective, to ensure better working with interpreters, including:

  • provision of information to the public about the availability of interpreters

  • facilitation of training for judicial officers and court staff on the recommended standards and working with interpreters

  • assessing the need for an interpreter

  • coordination and engagement of interpreters by the court

  • court budget for interpreters

  • appropriate support for interpreters

  • provision of professional development to interpreters on the recommended standards, and

  • adoption of the model rules to give effect to the proposed standards.

The optimal standards for courts21 are intended to provide aspirational targets or longer-term strategies or objectives to be implemented as and when resources become available, relating to simultaneous interpreting equipment; provision of tandem or team interpreting; provision of professional mentors; and establishment of an interpreter portal.

Recommended standards for interpreters

The recommended standards for interpreters22 outline what is expected of interpreters during court proceedings, including adherence to the Court Interpreters’ Code of Conduct (in Sch 1 of the model rules),23 and practical aspects related to interpreting in court.

Recommended standards for legal practitioners

The recommended standards for legal practitioners24 relate to their particular responsibilities, including:

  • assessing the need for an interpreter

  • booking interpreters

  • engaging appropriate interpreters

  • briefing interpreters

  • using plain English, and

  • appropriate management of documents.

Model rules and model practice note

The recommended standards are accompanied by model rules25 and a model practice note.26 Courts and tribunals are encouraged to adopt these to give effect to the proposed standards. The model rules recognise and affirm the important role of interpreters and their paramount duties of accuracy and impartiality in the office of interpreter.

Legal appendix

The legal appendix27 is intended as a summary for judicial officers and practitioners regarding the current law on interpreters in the legal system.

Annexures

Six annexures28 cover practical strategies and information to facilitate better working with interpreters in courts and tribunals.

A note about implementation

As former Chair of the JCDI, the Honourable Wayne Martin AC, former Chief Justice of Western Australia, stated in the foreword, the recommended standards “have been specifically designed to recognise and respond to the practical limitations which may preclude achievement of optimal practices in all cases and circumstances”,29 and are intended to be implemented progressively, in line with resource capacity.

Who produced the resource

The recommended standards were prepared by a specialist committee appointed by the JCDI, which included representatives of the judiciary and tribunals and senior members of key interpreting bodies.

The JCDI is an advisory body formed to support procedural fairness and equality of treatment for all court users, and to promote public trust and confidence in Australian courts and the judiciary.

For further information, please contact:

 

Judicial Council on Diversity and Inclusion

 

Mail: PO Box 4758 KINGSTON ACT 2604

 

Email: secretariat@jcdi.org.au

 

Telephone: 02 6162 0361

 

Website: https://jcdi.org.au/


1Previously published (2018) 30(4) JOB 36, updated 2022 and 2023.

2Senior Policy Adviser, Migration Council Australia and Judicial Council on Diversity and Inclusion (previously known as Judicial Council on Cultural Diversity).

3The 2nd edition of Recommended National Standards for Working with Interpreters in Courts and Tribunals published in 2022 is at https://jcdi.org.au/wp-content/uploads/2022/05/JCDD-Recommended-National-Standards-for-Working-with-Interpreters-in-Courts-and-Tribunals-second-edition.pdf, accessed 19 January 2023.

4ABS, 2071.0 — Census of Population and Housing: Reflecting Australia — Stories from the Census, 2016 at www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/2071.0~2016~Main%20Features~Snapshot%20of%20Australia,%202016~2, accessed 6 May 2021.

6Recommended Standards for Working with Interpreters in Courts and Tribunals, above n 3.

7ibid, Annexure 4. The test has been adopted from the Northern Territory Aboriginal Interpreter Service.

8ibid, Annexure 5.

9ibid, Standard 24.

10ibid, Standard 9.

11ibid, Standard 17.

12ibid, Standard 17.

13ibid, Standard 14.

14ibid, Annexure 3.

15ibid, Standard 25.

16ibid, Standard 9.

17ibid, Standard 20.

18ibid, Standard 9.

20ibid, Standard 1.

23ibid, Sch 1.

25ibid, Model rules.

29ibid, Foreword.