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Interpreters

16 Aug 2016 - 12:37 | Version 14 |

Contributed by LaurenCampbell, Aboriginal Interpreter Service, and current to 1 May 2016

It is essential that anyone who has difficulty effectively communicating in English has the services of an interpreter in any legal situation. As a general guide, anyone who speaks English as an additional language and has not completed High School or above in English, should work with an interpreter. Lawyers working with clients who speak English as an additional language must properly assess their client's English speaking and comprehension before proceeding to take instructions. It is not only people from non-English backgrounds who require interpreters; a person who has hearing disability may also need one.

It is particularly important to understand that interpreting in legal situations requires a professional, trained interpreter. It is highly likely that a family member or untrained bilingual speaker will make mistakes if they try to interpret legal language.

Clear and full communication is particularly important in the following situations:
  • in any police interview
  • in conferences between a person and their lawyer
  • during court proceedings.

This means the client must be able to fully understand proceedings and also express themselves fully.

Protocols

In recent years, Interpreter protocols have been developed for the Supreme Court and Local Court of the Northern Territory. The Law Society of the Northern Territory released the second edition of their Indigenous protocols for lawyers in 2015, outlining best practice for assessing, engaging and working with Aboriginal interpreters. NT Police also address police procedures for working with interpreters in their General Orders. The NT Government Language Services Policy provides guidance to NT Government Departments in providing services to people who speak English as an additional language. Many of these protocols were considered in the case of The Queen v BL [2015] NTSC 85.

The Family Court of Australia also has an Interpreter Policy which states 'no court client should be disadvantaged in proceedings before the Court or in understanding the procedures and conduct of court business, because of a language barrier'.

Statutes, laws and practical rights

In addition to these protocols, in the NT a person's right to an interpreter in various situations is also found in legislation and case law (the decisions that judges make in court).

Section 30 of the Evidence (National Uniform Legislation) Act (NT) includes a right to an interpreter for witnesses who are giving evidence (telling their story) in court. Section 139(3) of that Act also requires police to caution suspects using a language that the suspect understands with reasonable fluency.

Section 30 of the Evidence Act (Cth) includes the right to an interpreter for witnesses giving evidence, and applies to all Federal Courts.

Section 15(1) of the Youth Justice Act (NT) requires police to explain certain things to a youth (a person who is 17 years old or less) 'in a language and manner the youth is likely to understand, having regard to the youth's cultural background and English language skills'. Section 61(2) of the same Act requires Courts to make sure the youth understands the legal proceedings. These sections effectively provide the youth with a right to an interpreter in criminal cases.

The principal of a right to a fair trial for criminal cases is widely held to include the right to understand proceedings, which for many people may include the right to an interpreter. In Civil cases, the law is less clear, however the protocols and policies of many courts will often help ensure that an interpreter is available even if the law is not clear that there is a right to an interpreter.

International law also supports the right to an interpreter in legal proceedings. International law is rarely referred to in NT Courts, though. An example of an international law is The International Covenant on Civil and Political Rights, which states that a person facing criminal charges has the right to be informed promptly and in detail about the nature and charges against them in a language they understand [article 14].

When a person has the right to an interpreter

In the NT, a person has a right to an interpreter in a number of circumstances. This right may be contained in legislation or judge-made law, or be a practical right. These circumstances are as follows:

When arrested

When a police officer arrests someone, they are obliged to tell them at the time of the arrest, or as soon as is practicable, what they are being charged with [Police Administration Act s.127]. This section does not specifically refer to an interpreter.

When interviewed by police

In criminal offences under NT legislation, once a person has been arrested they must be informed that they do not have to say anything and that anything they do say can be used in evidence before police can commence questioning [Police Administration Act s140, Evidence (National Uniform Legislation) Act s139(3)]. This requirement is known as the 'police caution'. If a person does not speak English fluently, this caution can only be given properly with the services of an interpreter. NT Police have recently introduced recordings of the Caution in Aboriginal languages to be used in Electronic Records of Interview (EROIs). These recordings are to be used in conjunction with interpreters to confirm the person's understanding. If it can be shown that the person didn't understand the police caution, the entire record of interview might be excluded from evidence in any court proceedings.

In addition, the courts have developed special rules that police must follow when questioning Aboriginal people. These rules were first set out in the case of R v Anunga ((1976)11 ALR 412) and are now known as the Anunga Rules. These rules have been developed and confirmed in many cases since the original Anunga case. These rules state that unless the person being questioned is as fluent in English as an average person from an English-speaking background, the following must apply:
  • an interpreter should be used
  • where possible a prisoner's friend should be present
  • the police caution is to be given in clear language and the detainee asked to explain each phrase back to the interviewer to ensure that they actually understood its meaning
  • care is to be taken in phrasing questions so as to not suggest what the answer should be.

An interpreter must be provided to any person arrested under the Crimes Act 1914 (Cth) [Crimes Act ss.23F, 23J and 23N]. Crimes under this Act are limited to Commonwealth offences such as Social Security fraud. It doesn't matter whether the arrest is made by Territory or Federal police.

In conferences between a client and their lawyer

The Rules of Professional Conduct and Practice (NT) is legislation that sets out many of the obligations lawyers have towards their clients. Rule 17.2 requires the lawyer to ensure their client understands the legal issues involved in their case, and to make sure the client is able to give sufficient instructions. In many instances where the client speaks English as a second language, an interpreter would be necessary to help the lawyer fulfil their professional obligations.

In the case of Putti v Simpson (1975) 6 ALR 47, at 50-51, the judge said 'The practice of appearing with only hurriedly gained instructions, especially where language or cultural differences jeopardise understanding, may result in substantial injustice to individuals'

In criminal proceedings

There is a common law right to a fair trial. In criminal proceedings, there is case law that says that if the defendant does not speak English, the absence of an interpreter will result in an unfair trial [Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444] and the court may order that the proceedings be suspended until an interpreter is provided.

In civil matters documents signed without the services of an interpreter may not be legally binding if it can be shown that the person who signed them didn't understand what they signed because they couldn't understand English.

In addition, rule 22 of the Local Court Rules states that affidavits must be sworn using the services of an interpreter where it appears to the person before whom the affidavit is to be sworn, that the person swearing does not understand English.

Working with an interpreter

Any interpreter used in a legal setting must be professionally trained. The language of the legal system can be difficult and the concepts confusing, even to native English speakers. An interpreter is not just a person who speaks more than one language, they are trained professionals. Interpreters are bound by a code of ethics that requires accurate, impartial, confidential and professional interpreting. In addition to interpreting skills, it is important that the interpreter is impartial, that is, they aren't closely related to any of the parties or have an interest in the outcome of the case.

In Australia interpreters are accredited by the National Accreditation Authority for Translators and Interpreters (NAATI). Most professional interpreters will carry their NAATI accreditation card with them, or currency of an interpreter's accreditation can be checked on NAATI's website. For large and established language groups in Australia, Professional Interpreter level accreditation is preferred for legal work. For smaller language groups, including Aboriginal languages and new and emerging languages, NAATI only offer Paraprofessional Interpreter accreditation. In some languages it may not be possible to obtain an interpreter who is accredited or trained to these levels. Most of the protocols outlined above will address how to proceed if an accredited interpreter is not available.

The NT Law Society document 'Indigenous Protocols 2nd ed' sets out steps for deciding if an interpreter is needed, as well as good ways to talk about working with interpreters. It is important that no-one feels embarrassed or shamed because of working with an interpreter. Lawyers should avoid phrases like 'Do you need an interpreter?' or 'I have to get an interpreter because you can't understand what's going on'. Asking a closed question like 'do you understand me?'is not a good way to decide if you should work with an interpreter.

The Aboriginal Interpreter Service also provides information on Major Aboriginal Languages of the NT, best practice for working with an interpreter and also offers training sessions for professionals working with interpreters.

Interpreter services

A number of organisations provide interpreter services in the NT.

Aboriginal Languages

Aboriginal Interpreter Service (AIS)

AIS provides on-site and telephone interpreters in all major Aboriginal languages spoken in the NT. Fees for legal aid services for criminal law matters are covered by existing funding. AIS also provides interpreters at all NT Bush Court Circuit sittings. Contact details for the AIS are:

Main Office

Tel: 1800 33 49 44

Email: ais@nt.gov.au

Fax: 8999 8855

International Languages

Interpreting and Translating Service Northern Territory (ITSNT)

ITSNT provides on-site interpreters and documentation translation in all major languages, excluding Aboriginal languages, and provides sign interpreters for people with hearing disabilities. ITSNT also provides on-site interpreters for people in detention appealing visa application outcomes. These services are free to NT government agencies providing services to NT residents. Non-NT residents and private users are charged a fee. Contact details for ITSNT are:

Tel: (08) 8999 8506 or freecall 1800 676 254

Email: itsnt@nt.gov.au
Telephone Interpreter Service (TIS) National

TIS operates within the Department of Immigration and Border Protection. TIS provides a 24-hour telephone interpreter service in almost any language, except for Aboriginal languages. TIS also provides interpreters for on-site interpreting. TIS no longer provides a documentation translation service, except for some special visa holders. TIS services are not free, although government departments are charged cheaper rates than private or commercial clients. Contact details for TIS are:

Tel: 131 450

Website: www.tisnational.gov.au

Sign Language Interpreting

National Interpreting and Communication Services (NICSS)

A variety of sign languages are used in the Northern Territory, including Auslan and Aboriginal sign languages (which vary with language groups). Some Aboriginal clients may require a team of an Auslan interpreter and Aboriginal interpreter to work together. Deaf people residing or travelling in Australia from another country can also access sign language interpreting services and may require a team of an Auslan Interpreter and Deaf Interpreter. A qualified sign language interpreter can assist you in determining which process is optimal for your needs.

For deaf clients and people with hearing loss, NICSS offer on-site and a range of video interpreting (court and police video conferences, Skype, Facetime, etc). Some legal services are free to NT Government agencies. Please contact NICSS for further details.

Contact details for NICS are:

Freecall: 1800 246 945

Website: www.nicss.org.au

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