Accessing the legal system in Australia is difficult enough for native English speakers.
However, of the many barriers to justice experienced by non-English speakers, struggling merely to understand the words used by practitioners and judicial officers – let alone the corresponding processes – is perhaps the most isolating.
In the 2016 Census, 820,000 people reported that they spoke English “not well” or “not at all”. This represented an increase from 655,000 in the 2011 Census, which in turn was an increase from 560,000 people in the 2006 Census.1 When the data from the 2021 Census is released later this year, the number of people reporting that they speak English “not well” or “not at all” is likely to increase further.
It stands to reason that most practitioners will encounter persons who require the assistance of an interpreter – be that a client, a witness or another party. This will occur less frequently in some areas of practice, and more frequently in others. Although pre-eminent experts such as Professor Sandra Hale from the University of New South Wales have published high quality academic studies on the use of interpreters,2 the purpose of this article is to provide a ready reference guide for practitioners.
My personal experience includes eight years as a member of the Migration Review Tribunal and Refugee Review Tribunal, and the Migration and Refugee Division of the Administrative Appeals Tribunal. In the majority of these hearings, an interpreter was engaged to assist with communication between the tribunal, the parties and witnesses. I also served on the Interpreters Advisory Group for a number of years.
The role of the interpreter
The role of an interpreter is to take a spoken language and convert it accurately and impartially into another language, to enable communication between two or more persons who do not share a common language.
Many practitioners use the words ‘interpret’ and ‘translate’ interchangeably. However, the words represent two distinct areas of expertise. Interpretation relates to spoken language, whereas translation relates to written documents.
In general, it is not an interpreter’s role to translate documents. However, there may be situations where it is appropriate to ask an interpreter to ‘sight translate’ short and simple texts. Long, complex texts need to be properly translated by a qualified translator. It is also not the interpreter’s role to provide an expert opinion about matters such as accent, dialect or cultural issues.
Accreditation of interpreters
Interpreters are accredited by the National Accreditation Authority for Translators and Interpreters (NAATI). Different levels of accreditation are offered by NAATI, listed as follows in descending order:
- Certified Conference Interpreter
- Certified Specialist Interpreter (Health and Legal)
- Certified Interpreter
- Certified Provisional Interpreter
- Recognised Practising Interpreter.
For legal matters, the best practice is to engage interpreters who are accredited at Certified Interpreter level or higher. The Certified Interpreter level was formerly known as Level 3 or Professional Interpreter level.
However, it may not always be possible to find a NAATI accredited interpreter at this level, or indeed at any level (for example, in some rarely required languages). Where it is not possible to obtain an accredited interpreter, then consideration may be given to ‘second best’ options, including exploring assistance from the non-English speaking person’s friends and relatives. In these circumstances, practitioners should take into account the possibility that there may be deficiencies in the interpretation.
Standard of interpretation
The desirable standard of interpreting is defined by reference to criteria such as accuracy and impartiality. Professor Hale refers to providing a ‘faithful rendition’.3 It is important to remember that accurate or faithful interpreting does not mean interpreting literally, as word-for-word translations normally produce nonsensical renditions. For example:4
Spanish original: “Estoy que no doy más.”
Literal interpretation: “Am that no give more.”
Accurate interpretation: “I’m dead tired.”
An interpretation must be sufficiently accurate so as to convey the idea or concept being communicated.5 For example, in Perera v Minister for Immigration and Multicultural Affairs,6 Justice Kenny stated:
“Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.”
In person versus telephone interpretation
In courts and tribunals, it is often seen as desirable to have interpreters who are present in person, particularly where credibility is in issue. However, for discussions between a practitioner and a client or witness outside of a formal proceeding, telephone interpretation is usually sufficient and more convenient.
There are many telephone interpretation services available. Where telephone interpretation is being used, it is usually desirable to book an interpreter in advance to ensure the availability of an appropriately qualified interpreter.
Whether an interpreter is booked by telephone or in person, it is also useful (subject to confidentiality considerations) to provide the agency with a brief statement of the subject to be discussed to assist the interpreter with their preparation.
In the era of COVID-19, telephone interpretation has become increasingly the norm.
To minimise the risk of interpreting problems, the non-English speaking person should be advised at the earliest opportunity that they should raise any difficulties communicating with the interpreter immediately.
It is often useful to make some opening remarks, which can serve not only to explain the procedure to be adopted but to also provide the non-English speaking person with an opportunity to assess their understanding of the interpreter.
The type of opening remarks I would make as a tribunal member are perhaps more lengthy than might be used in a practitioner’s office, but nevertheless they provide a starting point which can be easily abbreviated to fit the circumstances. Typically, I would make remarks to the non-English speaking person along the following lines:7
It is important that we understand each other as fully as possible. To do this, we are using the services of a professional and independent interpreter. The interpreter is bound by a code of confidentiality not to repeat anything said outside of this room.
The role of the interpreter is to interpret what is said fully and accurately. The interpreter must interpret everything they hear. They are not here to provide advice, or to offer any personal opinions.
Unless there is a problem or clarification is needed, I will direct my questions and comments to you, not to the interpreter. You should also direct your questions and answers to me, and not to the interpreter.
If you do not understand something, please ask me to repeat it or rephrase it. Please do not ask the interpreter to explain it to you.
It is vital that you and the interpreter understand each other. If the interpreter cannot understand you, they will let me know immediately. If you cannot understand the interpreter, please also let me know immediately.
As I am doing, please pause every few sentences to allow the interpreter to interpret.
Are you able to understand the interpreter without any difficulty?
Do you have any issues with using this particular interpreter?
The last question gives the non-English speaking person an opportunity to raise any cultural or other issues which may affect their ability to engage openly in the interpreter’s presence. Each situation will need to be considered in its particular circumstances.
Some ‘do’s and don’ts’
Professor Hale made recommendations for the establishment of a national protocol on working with interpreters in courts and tribunals,8 which ultimately led to the ‘Recommended National Standards for Working with Interpreters in Courts and Tribunals’.9 I have extracted and adapted a list of ‘do’s and don’ts’ from her excellent recommendations:
Consistently speak in the first person. Ensure the interpreter does also. For example, do not ask the interpreter “Can you ask her why she’s here?”, simply ask the non-English speaking person “Why are you here?”
Direct your comments and questions to the non-English speaking person, not to the interpreter.
Allow the interpreter to interpret at regular intervals – ideally every two or three sentences.
Use plain English.
Give the interpreter a break at appropriate points. Invite them to request a break if required.
Do not assume that the non-English speaking person will understand legal jargon when interpreted into their language. Interpreters must interpret accurately, and cannot simplify the text or explain legal concepts. It is the practitioner’s responsibility to explain them plainly, not that of the interpreter. Summarise periodically when complex issues are involved.
Do not object to an interpreter’s requests for repetition or clarification. It is a sign of a good interpreter to take such actions when needed, to ensure accurate interpretation.
Do not have long discussions with the interpreter. If it is necessary to speak directly to them, ensure that the interaction is interpreted to the non-English speaking person.
Do not engage the interpreter for longer than the booked time without establishing their availability.
When interpretation goes badly
The consequences of a poor interpretation go beyond a failure to accurately communicate a concept or idea, and may also give rise to an unfavourable impression of the non-English speaking person. As Justice Kenny stated in Perera:10
“A witness whose answers appear to be unresponsive, incoherent, or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation.”
In some cases, it will not be apparent that the standard of interpreting is deficient. For example, I found out the interpretation was unsatisfactory in a hearing I had conducted as a member of the Refugee Review Tribunal only when my decision was appealed in BZAID v Minister for Immigration and Border Protection.11 In that case, the applicant spoke Vietnamese, and her migration agent spoke both English and Vietnamese.
The migration agent raised concerns in relation to the quality of the interpretation. Following a discussion with the first interpreter, I dismissed the interpreter and obtained a second interpreter by telephone. On the appeal, the applicant had a transcript prepared by another accredited interpreter of what the second interpreter had spoken at the hearing in Vietnamese. This disclosed a number of errors, omissions and mistranslations.
In the words of Justice Edelman:12
“The unfortunate occurrences in the hearing placed the Tribunal in an extremely difficult position … When the Tribunal realised that the first interpreter had been inadequately interpreting the evidence, the Tribunal properly dismissed the interpreter. When the second interpreter translated an answer to the Tribunal, the Tribunal explained to the appellant’s agent that it was suspicious of the answer given and asked the agent to confirm it. If the agent had made the Tribunal aware of the number and extent of other errors in translation, including on matters which were important to the Tribunal’s determination, then the Tribunal would almost certainly have vacated the hearing and relisted it.”
However, in many cases, deficiencies in interpretation may be indicated by matters such as:
- the coherence or responsiveness of answers to questions asked
- the consistency of one answer with another
- more generally, any evident confusion in exchanges with the interpreter.
If a practitioner has any doubts about the quality of the interpreting (particularly where no Certified level interpreter is available), the practitioner should consider rescheduling with another interpreter.
It is sometimes the case that the cross-cultural differences can also lead to communication problems between speakers of different languages.
It would be almost impossible for a practitioner to have a specific understanding of the cultural background of every non-English speaking person they may encounter. However, what is important is for practitioners to have an awareness that persons from different cultures may have a different understanding of basic concepts from that held by the practitioner. Practitioners should avoid making assumptions based on their beliefs about a particular culture.
Practitioners need to be attentive to any potential cross-cultural issues and to always seek clarification when an answer seems incoherent or unresponsive, in case this is due to cross-cultural differences, rather than assuming that the problem necessarily relates to the quality of the interpreting.13
There is a code of ethics developed by the Australian Institute for Interpreters and Translators.14 Interpreters must be impartial in carrying out their duties. There should be no conflict of interest.
The consequences of a lack of interpretation can be seen in Applicant SIL v Scheme Manager, Victim Assist Queensland, Department of Justice and Attorney-General,15 a decision I made as a member of the Queensland Civil and Administrative Tribunal.
In that case, the applicant called the police to report that her husband wanted to kill her. When the police arrived, they asked the applicant a single question: whether she could speak English. The applicant answered words to the effect of “yes, but not very well”. The police did not speak to her any further, and at no point was she asked whether she wanted an interpreter. As I wrote in my decision:16
“[I]t appears to me that the applicant was effectively denied a voice … due to her very limited English skills. In particular, the Queensland Police Service did not speak to her, but their report of the incident nevertheless proceeded to characterise her as ‘the offender’. While Logan Hospital obtained an interpreter to interview the applicant, key elements of the information contained in the discharge letter were drawn from information provided by the Queensland Police Service and not from the applicant.”
After hearing from the applicant through material prepared with the assistance of an interpreter, I believed her claim that she had been a victim of domestic violence.17
The availability and proper use of interpreters is vital in ensuring access to justice in multicultural Australia. For those with no or limited proficiency in English, interpreters make their participation in the legal system possible. This article has drawn attention to the significance of that role, and outlined ways in which interpreters and practitioners can work better together.
Glen Cranwell is a former member of the Migration Review Tribunal and Refugee Review Tribunal, and the Migration and Refugee Division of the Administrative Appeals Tribunal. The views expressed are those of the author.
2 See, for example, Sandra Hale and Debra Russell (eds), Interpreting in Legal Settings (2008: Gallaudet University Press).
3 Sandra Hale, ‘The Challenges of Court Interpreting: Intricacies, Responsibilities and Ramifications’ (2007) 32 Alternative Law Journal 198.
5 WACO v Minister for Immigration, Multicultural and Indigenous Affairs  FCAFC 171, .
6  FCA 507, .
7 These remarks are based on a sample script in circulation at the Migration Review Tribunal and Refugee Review Tribunal, circa 2009.
8 Sandra Hale, Interpreter policies, practices and protocols in Australian courts and tribunals: A national survey (2011: Australasian Institute of Judicial Administration), 55; Sandra Hale, ‘Guidelines for Lawyers on Working with Interpreters‘ (Web Page).
9 Judicial Council on Cultural Diversity, Recommended National Standards for Working with Interpreters in Courts and Tribunals (2nd ed, 2022).
10 Ibid, .
11  FCA 508.
12 Ibid, .
13 Sandra Hale, ‘Interpreting culture. Dealing with cross-cultural issues in court interpreting’ (2013) 22 Perspectives: Studies in Translatology 321.
15  QCAT 237.
16 Ibid, .
17 Ibid, .