Over 300 languages are spoken in Australian households, and one fifth of Australians speak a language other than English at home according to the 2016 Census. This means judicial officers will encounter litigants and witnesses who will require the assistance of an interpreter both in the preparation of evidence such as affidavits and to give their evidence in court. In this context “languages” includes Auslan and other methods of communication by deaf or mute persons. “Interpreting” refers to the spoken word and “translating” refers to written text.
[1-0910] Legal issues
Meeting the needs of culturally and linguistically diverse persons in legal proceedings raises numerous practical and legal issues. These include:
Procedural fairness requires litigants to be “linguistically present” in addition to being physically present: see, for example, Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 (NSWCA).
Section 30 Evidence Act 1995 (NSW) provides:
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.
The Council of Chief Justices of Australia and New Zealand has approved the Judicial Council on Cultural Diversity’s (JCCD) Recommended National Standards for Working with Interpreters in Courts and Tribunals. The standards contain sections including “Plain English Strategies”, “Four-part test for determining need for an interpreter” and “What judicial officers can do to assist the interpreter”. The Recommended National Standards can be found on the JCCD website at https://jccd.org.au/publications/ (accessed 22/7/2019). See also an explanatory article in the Judicial Officers’ Bulletin: S Olbrich, “Recommended National Standards for working with interpreters in courts and tribunals” (2018) 30 JOB 36.
An Addendum to the Recommended National Standards for Working with Interpreters in Courts and Tribunals has been published.
Information on working with interpreters can also be found in the Equality before the Law Bench Book at [3.3].
The Uniform Civil Procedure Rules were amended on 8 November 2019 to insert Pt 31, Div 3 (r 31.55–31.64). This provides for rules concerning interpreters based on the JCCD’s Model Rules set out in the Recommended National Standards for Working with Interpreters in Courts and Tribunals. The rules apply in all NSW civil proceedings. The application of the Evidence Act 1995 is unaffected by the amendments.
The amended rules also provide for the Court Interpreters’ Code of Conduct at Sch 7A of the UCPR.
 ABS, “2016 Census: Multicultural media release” at www.abs.gov.au/ausstats/abs@.nsf/lookup/Media%20Release3, accessed 23/7/2019.