People from culturally and linguistically diverse backgrounds

3.1 Some statistics[1]

  • Population — The NSW population according to the 2016[2] census was 7.48 million residents, a 8.1% increase from the 2011 census. However, the NSW population at the end of the 2016 September quarter rose to 7.79 million.[3]

    • Figure 3.1 shows the breakdown of Australian born and overseas born NSW residents using figures from the 2016 census:

      Figure 1.  

       

    • Of the 2.06 million of those born overseas 1.56 million were born in a non-main English speaking country (NMESC).[4]

    • Approximately 27.5% of those born overseas were born in mainly English-speaking countries (MESC)[5] (498,480) — predominantly in the UK, South Africa and New Zealand, but also in other English-speaking countries such as Hong Kong, India and the Philippines. Many English-speaking countries have values, customs, laws and legal systems that are similar (although not identical) to those in Australia.

    • Of the total NSW population, 17.9% (1.56 million) were born in a NMESC. Around one in five of these NSW residents had only arrived in Australia within the previous five years. These people were born in 45 different countries, most of which have values and customs that are different from those in Australia, and nearly all of which have laws and legal systems that are very different from those in Australia.

    • One in four of those born in a NMESC were born in China, India and Vietnam. Table 3.1 ranks NMESC birthplaces according to the percentage of the NSW population born there:

      Table 3.1 — NSW residents born in non-English country birthplaces: 2016 census figures

      Birthplace Number of NSW residents % of NSW population
      China (excluding SARs and Taiwan) 234,508 3.1
      India 143,459 1.9
      Philippines 86,749 1.1
      Vietnam 84,130 1.2
      Lebanon 57,381 0.8
      South Korea 51,816 0.7
      Italy 49,476 0.7
      South Africa 43,058 0.6

    • The overseas birthplace countries listed above showing the greatest increase between 2006 and 2011 were China, India, the Philippines and Vietnam.

  • Language spoken:

    • 25.2% (1.88 million) of NSW residents speak a language other than English at home.

    • Between 6.0% and 40.0% (depending on the age range), of those who do so, cannot speak English very well, or cannot speak English at all. Those most likely to be in this situation are migrants from South East Asian countries such as China and Vietnam. However, it should be noted that even those who do speak English reasonably well may need an interpreter in a court situation. For more on this see 3.3.1 below.

  • Place of residence — Sydney is recognised internationally as one of the most culturally and ethnically diverse cities in the world. The majority of people born in NESC live in specific areas of Sydney, as do those who cannot speak English at all or who cannot speak it well (1.7 million). Most of these non-English or poor English speakers live in the local government areas of Fairfield (20.4%), Canterbury (14.7%), Bankstown (11.0)%, Liverpool (8.7%), Parramatta (9.0%), Blacktown (4.7%), Auburn (18.7%) or Rockdale (8.7%).[6] In general, a much smaller percentage of the local population outside Sydney was born in a NESC than in Sydney, and the same can be said for those who cannot speak English well or at all. However, it should be noted that Wollongong local government area has the eleventh highest number of people who cannot speak English well or at all.

  • Ancestry or ethnic background:

    • 65.5% (4.89 million) of NSW residents are Australian born. Of those born in Australia:

      • 45.4% (3.39 million) have both parents Australian born

      • 6.1% (458,394) have their father overseas born

      • 4.3% (325,182) have their mother overseas born

      • 37% (2.76 million) have both parents born overseas.

    • This means that 47.4% (3.1 million) of NSW residents have recent, overseas ancestry, that is, at least one of their parents was born overseas

    • It also means that 9.73% (728,434) of the total NSW population (7.48 million) are Australian born with at least one parent born overseas.

  • Religion — The religious affiliations of people born overseas or with recent overseas ancestry, whether from MESC or NMESC are various and do not necessarily match the dominant religion within the particular overseas country. For more information about religious affiliation — see Section 4.

  • Socio-economic status:

    • The unemployment rate for people born overseas is slightly higher than the rate for people born in Australia. However, the gap between the Australian born unemployment rate and the migrant employment rate reduces when the general unemployment rate goes down. In Australia, in 2013, the unemployment rate was 6.0% for both overseas and Australian born people.[7] However, this is an aggregated statistic. Newly arrived migrants and those from non-English speaking backgrounds (NESB) have higher unemployment rates than those who have been here longer and those who come from English-speaking countries. Interestingly, the gap between the Australian born unemployment rate and the migrant unemployment rate widens the higher the educational qualification of the migrant — presumably to do with the difficulty of getting overseas qualifications recognised and race discrimination within recruitment and selection practices. However, recent migrants who had obtained a non-school qualification before arrival had a lower unemployment rate than those who had not (13.4% and 23.6% respectively).[8]

    • Migrants, and particularly those from NESB, often take at least one generation to establish themselves at the same professional level as where they came from — due to a combination of the delays caused by migrating and resettling, their lesser ability to speak English and negotiate a different culture, the difficulty in getting their overseas qualifications recognised, and some race discrimination in recruitment and selection processes.

  • Crime — within some sections of the community there is a perception (sometimes fed by the media) that members of some migrant groups are more likely to resort to crime than other groups. However, research indicates that the statistics about ethnicity and crime rarely take into account social and economic variables. In other words, social disadvantage would appear to be the main influencing factor in relation to propensity to crime, not ethnicity.[9] For example:

    • In relation to the so called “gang warfare” between different ethnic gangs, the then Ethnic Affairs Commission of NSW concluded that such gang conflict tends to be of a “territorial” rather than a “racial” nature, and that participation in such gangs tends to be no different for ethnic minority youth than for Australian youth. The more important influences would appear to be poverty and marginalisation.[10]

    • Australian Bureau of Statistics figures[11] reveal that of the NSW prison population in 2016 of 12,629 inmates, 9693 were Australian born (76.7%) and the remainder (2765) came from the following countries:

      Table 3.2 — NSW prison population: 2016 figures

      Country of birth NSW prison population[12]

      Total NSW population[13]

      Outside Australia 21% – 2765 inmates 27.6%
      United Kingdom 1.3% – 156 inmates 3.6%
      New Zealand 2.6% – 326 inmates 1.6%
      China (excluding SAR and Taiwan) 1.7% – 206 inmates 3.1%
      Vietnam 2.5% – 311 inmates 1.1%
      Italy 0.2% – 26 inmates 0.7%
      Lebanon 1.2% – 157 inmates 0.8%
      Philippines 0.5% – 68 inmates 1.2%
      India 0.3% – 35 inmates 1.9%
      Greece 0.2% – 21 inmates 0.4%
      Germany 0.2% – 30 inmates 0.4%
      Fiji 0.7% – 90 inmates 0.5%
      Iraq 0.7% – 89 inmates 0.5%
      Malaysia 0.4% – 47 inmates 0.4%
      USA 0.3% – 41 inmates 0.4%
      Samoa 0.4% – 51 inmates 0.1%
      Tonga 0.2% – 29 inmates 0.2%
      South Africa 0.2% – 22 inmates 0.6%
      Turkey 0.2% – 29 inmates 0.2%

      [12] NSW Department of Corrective Services, NSW Inmate Census 2016: Summary of Characteristics, Statistical Publication No. 45, October 2017, Table 1.6 Country of Birth, Full-time custody inmates, at http://www.correctiveservices.justice.nsw.gov.au/Documents/045-nsw-inmate-census-2016.pdf, 16 May 2018.

      [13] ABS, Census of Population and Housing, 2016, ABS cat no 2071.0, released 22.05.18 at http://www.abs.gov.au/ausstats/abs@.nsf/mf/2071.0, accessed 16 May 2018


      This indicates that of the overseas born groups listed above, those born in New Zealand, Vietnam, Lebanon, Fiji, Iraq and Samoa are over-represented in the prison population.

    • In 2011–2012, 25% (90 out of 353) of juveniles in detention in NSW came from a culturally and linguistically diverse (CALD) background. While not all of them are necessarily from a non-English speaking background, representation of these populations in detention is much higher than in the broader population.

      Note:

      the number and percentage has increased since 2009 but this is due to the change in the way the Department of Juvenile Justice counts culturally and linguistically diverse (CALD). Also note that approximately two-thirds of CALD young people were born in Australia or New Zealand, over half speak English at home, and over 10.0% of their parents were born in Australia or New Zealand.[14]

3.2 Some information

3.2.1 Cultural differences

  • Each ethnic and/or non-English speaking culture has its own set of cultural “norms”.

  • Each ethnic and/or non-English speaking culture (just like the mainsteam English speaking Australian culture) also contains its own set of variances and sub-cultures — for example, there is not just one Vietnamese or Lebanese cultural “norm”.

  • Each ethnic and/or non-English speaking group has also generally deviated from at least some of the cultural norms found in their home country — due to the impact of the (for many, extremely difficult) migration and settlement experience and then acculturation to living in Australia.

  • It is also important to note that not all members of particular ethnic and non-English speaking groups follow the cultural norms for their group.

  • However, there are some common cultural differences between people from many ethnic and/or non-English speaking backgrounds and people from mainstream English speaking backgrounds that are likely to influence:

    • The way in which people from different ethnic and migrant backgrounds present themselves and behave in court.

    • The way in which they perceive justice to have been done or not done.

    • The way in which justice actually is or is not done. For example, justice may not have been done if false assumptions have been made about a person from an ethnic or migrant background based on how a mainstream English speaking Australian would behave.

3.2.2 Examples of common cultural differences

The common cultural differences between people from many different ethnic groups and/or non-English speaking backgrounds and people from mainstream English speaking backgrounds can be grouped as follows:

  • Different naming systems and modes of address — see 3.3.2.1 below.

  • Differences in family make-up and in how individual members of the family are perceived and treated — see 3.3.6.2 below.

  • Different styles of behaviour and appearance, and allied with this, frequently different customs about how men and women and sometimes children should behave and be treated, and/or different customs about how people in authority should behave and be treated, and/or different customs about such things as marriage, property ownership and inheritance — see 3.3.4.2 and 3.3.6.2 below.

  • Different communication styles (linguistic and body language), combined in many cases with a lesser ability, or even complete inability to speak and/ or understand (Australian) English.

    Note:

    also that an individual’s ability to communicate in English is often reduced in situations of stress — such as court appearances.

    Note:

    also that if someone is fluent in English, it does not necessarily mean that they follow all or even most common mainstream Australian cultural norms or idioms — see 3.3.1 and 3.3.5 below.

  • Different understanding and experiences of how legal and court systems work and what they are capable of, and often a much lesser (and sometimes complete lack of ) understanding of the Australian legal and court system than the mainstream English speaking community. Many come from countries that use completely different systems — for example, an inquisitorial system or have experienced an extremely repressive dictatorial or corrupt and in their view unjust system. They may not have had any basic idea about the Australian jury system, cross-examination, what can and cannot be said in evidence, the importance of intent, and what bail represents and means. They may have very good reasons to fear everything to do with the legal and court system and particular reason to fear the type of questioning that can occur under strenuous cross-examination. They may be survivors of torture and trauma, which would make the court experience particularly terrifying — see 3.3.5.5 below.

  • Different customs between the generations — those from younger generations are more likely to adhere to (or want to adhere to) mainstream English speaking Australian customs and values than those from older generations — see 3.3.6.1 below.

  • People from non-English speaking backgrounds are much more likely to have experienced racism and race discrimination in Australia than people from mainstream English speaking backgrounds.[15] This may make some of them more likely to name any perceived problem, or any perceived difference from their own cultural norm(s) as being a form of racism or race discrimination, even when it is not. However, if you follow the guidance provided in Section 3.3, following, this should be less likely to occur.

3.2.3 The possible impact of these cultural differences in court

Unless appropriate account is taken of the types of cultural differences listed in 3.2.2 above, people from different ethnic and migrant backgrounds may:

  • Feel uncomfortable, fearful or overwhelmed.

  • Feel offended by what occurs in court.

  • Not understand what is happening or be able to get their point of view across and be adequately understood.

  • Feel that an injustice has occurred.

  • In some cases be treated unfairly and/or unjustly.

Note:

that s 13A of the Court Security Act 2005 provides that court security staff may require a person to remove face coverings for the purposes of identification unless the person has “special justification” (s 13A(4)) which includes a legitimate medical reason. Face coverings are defined as an item of clothing, helmet, mask or any other thing that prevents a person’s face from being seen. The court security officer must ensure the person’s privacy when viewing the person’s face if the person has asked for privacy.[16]

Section 3.3, following, provides additional information and practical guidance about ways of treating people from different ethnic and/or non-English speaking backgrounds during the court process, so as to reduce the likelihood of these problems occurring.

3.3 Practical considerations[17]

3.3.1 The need for an interpreter or translator

3.3.1.1 Assessing when to use the services of an interpreter or translator

An interpreter is someone who interprets speech orally — for example, they may interpret what is being said in court to any party or witness to the proceedings.

A translator is someone who translates written texts, documents and other recorded information in one language (the source language) to another language (the target language) — for example, business letters, a taped videoconference, covert recordings obtained under warrant.[18]

In many cases, an appropriately credentialed interpreter or the appropriate level of translation will already have been arranged by the time the person appears in court or the document is used in court — by the solicitor or barrister who is acting on behalf of or calling the particular person to court, or who is using the particular document.

However, there will be times when this has not happened and the court will need to assess the need for an interpreter or translator. The Judicial Council on Cultural Diversity (JCCD) produced a resource in 2017, Recommended national standards for working with interpreters in courts and Tribunals. The resource recommends that if a party or witness in court has difficulties understanding or speaking in English at any point, or if the person asks for an interpreter, the judicial officer should stop proceedings and arrange for an interpreter to be present. The recommended standards suggest that the judicial officer apply a four-part test to assess the need for an interpreter outlined in Annexure 4 of the resource.[19]

While there is no specific “right” to an interpreter, procedural fairness requires that the language needs of court users be accommodated. Various statutory provisions allow for the use of an interpreter, for example, s 30 of the Evidence Act (NSW) 1995:

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.

Since July 1998, it has been NSW Government policy for NSW Government agencies to fund the provision of language services (that is, interpreters and translated materials) when dealing with clients, in order to provide all clients with access to Government services. This is consistent with the multicultural principles included in s 3 of the Multicultural NSW Act 2000, and NSW having a comprehensive multicultural program to ensure their implementation (the Multicultural NSW Act 2000). This program, the Multicultural Policies and Services Program (MPSP) is overseen by Multicultural NSW.[20]

Under Article 14(3) of the International Covenant on Civil and Political Rights, a person facing criminal charges has the right to the free assistance of an interpreter if he or she “cannot understand the language of the court”. Australia has signed and ratified this convention.

An accused in a criminal trial in NSW has a right not to be tried unfairly, usually expressed as a right to a fair trial. There are many decisions where the provision of an interpreter has been discussed and then stressed as being critical wherever there is any possibility that to not provide one would disadvantage a party or their right to a fair trial. In the High Court’s decision inRe East; Ex parte Ngyuyen Kirby J said that:

where a trial would be unfair because of the absence of an interpreter, it is the duty of the judicial officer to endeavour to ensure that an interpreter is provided.[21]

The JCCD National Standards for Working with Interpreters in Courts and Tribunals summarises the statutory and common law sources of the “right” to an interpreter in civil and criminal proceedings.[22]

3.3.1.2 Recommended national standards for working with interpreters in courts and tribunals

In 2017, the Judicial Council on Cultural Diversity (JCCD) produced the Recommended national standards for working with interpreters in courts and tribunals[24] to establish recommended and optimal practices for working with interpreters, with the aim of improving access to justice and procedural fairness. This resource has been recommended by the Council of Chief Justices. The recommended standards for courts 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.

3.3.1.3 Level of interpreter or translator to employ

In general only interpreters and translators certified by the National Accreditation Authority for Translators and Interpreters (NAATI) and only those certified at the appropriate level for the particular type of interpreting and/or translation necessary should be engaged.[25] Preferably, practitioners who are also formally trained should be given preference over those who are only certified. Not all practitioners are certified and/or trained at the appropriate level for both interpreting and translation. Using the services of a non-certified practitioner can hinder communication in court and lead to a successful appeal and/or retrial if the trial is found to be unfair. The NSW Court of Criminal Appeal ordered a new trial in R v Saraya[26] because “the deficiencies in interpretation were such that the appellant was unable to give an effective account of the facts vital to his defence”.

Note:

that NAATI does not test for all new and emerging languages and has no specification of level of proficiency for these. However NAATI does issue a Recognised Practising Interpreter (or Translator) credential in these circumstances. Anyone holding a Recognised Practising credential has had to demonstrate social and ethical competency as well as work experience and is still subject to continuing professional development and professional conduct obligations.[27]

There are several techniques of interpreting:[28]

  • Dialogue interpreting involves interpretation of conversations and interviews between two or more people who do not share the same language. The interpreter listens first to short segments before interpreting them. The interpreter may take notes.

  • Consecutive interpreting is when the interpreter listens to larger segments, taking notes while listening, and then interprets while the speaker pauses.

  • Simultaneous interpreting is interpreting while listening to the source language, ie, speaking while listening to the ongoing statement. Thus the interpretation lags a few seconds behind the speaker … In settings such as business negotiations and court cases, whispered simultaneous interpreting or chuchotage is practised to keep one party informed of the proceedings.

  • Sign language interpreting — see Section 5.

  • Sight translation involves transferring the meaning of the written text by oral delivery (reading in one language, relaying message orally in another language). An interpreter may be asked to provide sight translation of short documents.

As part of the new certification system, NAATI will introduce a new certification, Certified Specialist Interpreter (Legal). Until the introduction of this in mid-2019, the minimum NAATI certification type should be Certified Interpreter (previously Professional or Level 3) and interpreters with formal training should be given preference. Certified Provisional Interpreters (previously known as Paraprofessional or Level 2) are not considered competent to work in court, and therefore should only be used as a last resort. In some emerging communities however they are the only interpreters available. Their use should be monitored very carefully; ensuring non-complex language with minimal jargon, short sentences and very clear definitions are used.

In many courts, due to the significant numbers of people who use specific languages, courts have arranged to have interpreters from common languages at the courthouse all day to assist anyone. For example, Liverpool Local Court has an Arabic interpreter at the courthouse every Tuesday. Use of these lists greatly assists with the efficiency of the court and promotes equitable access to the justice system.

The suppliers of interpreters and translators (see 3.3.1.4 below) can advise which level would be the most appropriate for a particular situation.

Most NAATI certified translators and interpreters belong to a professional body — the Australian Institute of Interpreters and Translators Incorporated (AUSIT). Members have to abide by AUSIT’s Code of Ethics based on eight principles: professional conduct, confidentiality, competence, impartiality, accuracy, employment, professional development and professional solidarity.[29]

Note:

that NAATI certification generally requires practitioners to be formally trained but this can vary, based on the language. It is advisable to give preference to those practitioners who, in addition to their NAATI credential, also hold a university degree or a TAFE advanced diploma in interpreting and/or translation.

It will greatly assist interpreters of any level to perform at a higher standard if they are briefed prior to any assignment. This may include a summary of the case in which they will be required to interpret, if possible, or at the very least, some information from the judicial officer at the commencement of their interpreting job. Interpreters should also be made aware that they are allowed to ask questions to seek clarification if needed in order for them to render accurate interpretations.[30]

It may also be important to consider — given the subject matter, any cultural considerations and the need to get the best possible evidence with as little difficulty as possible — whether to specifically ask for a male or female interpreter (for example in matters where the person may feel culturally uncomfortable having someone of the opposite sex interpret for them — such as matters relating to sexual activity, sexual assault or domestic violence), and/or for someone from the person’s own ethnic and/ or religious background (in order to minimise cultural discomfort and any concerns about possible misinterpretation) — for example, a Serbian Serbo-Croatian speaker as opposed to a Croatian Serbo-Croatian speaker.

And it is important to work out precisely what language, or in some cases dialect of a particular language, the interpreter needs to speak. This means care may need to be taken to establish in what country or region they learned their particular language — for example, do they speak European, Brazilian or African Portuguese?

3.3.1.4 Guidelines for magistrates and judges when working with interpreters in court[31]
3.3.1.5 Suppliers of interpreters and translators

There are two main suppliers of NAATI-certified interpreters and translators in NSW:

  • Multicultural NSW — face to face interpreting services are provided 24 hours a day, 7 days a week for 104 different languages and dialects including Auslan (Australian sign language).

    Note:

    that they have a contract with courts to provide interpreters in criminal matters, domestic violence and sexual assault cases free of charge — Ph 1300 651 500.

  • The Translating and Interpreting Service (TIS National) run by the Commonwealth Department of Home Affairs — provides telephone interpreting services 24 hours a day, 7 days a week, on-site interpreters and a document translation service for over 160 languages and dialects — Ph 131 450.

There are also independent interpreters or translators. If any of these are engaged, you need to check that they hold appropriate NAATI certification — see 3.3.1.2.

3.3.1.6 Who pays for an interpreter or translator

In criminal cases, Multicultural NSW will provide an interpreter free of charge — under their contract with courts.

In civil cases each party is generally responsible for paying for any interpreters or translators they require for themselves or their witnesses, however, at the end of the trial the successful party may ask to recover any interpreter/translator costs as part of their costs submission. If the court considers the costs would create a hardship, it may order that an interpreter be provided for the hearing. Interpreter costs have become a particular issue in cases where the parties have been ordered to participate in an ADR conference. A poor command of English significantly disadvantages a person’s ability to participate in the ADR.

3.3.1.7 Working with an interpreter
3.3.1.8 The provision of certified interpreters and certified translations before court proceedings start

It is important to check (at the relevant point in the proceedings), whether, in the lead up to the court proceedings, all relevant parties have had any necessary access to interpreters and/or translated documents such as statements and affidavits, that it is critical for them to have understood before signing, or to have been able to read in advance and/or adequately understand.

3.3.2 Modes of address

3.3.2.1 Different naming systems

Some ethnic groups have very different naming systems from the generally gender-specific “first” or “given” name, then middle name, then family name system used by mainstream English speaking Australians.

For example, they may:

  • Reverse the order of names and thus start with their family name and end with their given name — for example, Chinese and Vietnamese.

  • Not have a family name at all — for example, Icelanders.

  • Not often use their family name when referring to someone else — for example, Russians tend to use their given name and middle name only — the middle name being a name that indicates their father’s given name.

  • Have particular words in their names, or prefixes or suffixes attached to one of their names that indicate such things as:[37]

    • Gender — for example, in general the Vietnamese names of “Van” for men and “Thi” for women.

    • Marital status — for example, “Achi” after some Indian women’s names indicating that she is married.

    • Son of, or daughter of — for example the Muslim prefix “Ibn” meaning “son of”, or the Jewish “Ben” meaning son of; or the initial in the middle of some Indian names that indicates who they are the son of; or the suffix “ova” or “ovic” at the end of a Russian’s middle name that represents the name of their father followed by “ova” for women or “ovic” for males.

    • Father of, or mother of — for example the Muslim “Abu” (meaning father of ); and the Muslim “Ummul” (meaning mother of).

    • Spanish speakers may use both their paternal and maternal surnames, with the paternal name appearing first eg. Juan Lopez Garcia (Lopez being the paternal surname and Garcia the maternal surname).

However, not all members of each particular ethnic or religious group will follow the cultural norm for their group. And many have either completely adopted the mainstream-Australian naming system, or use alternative names that fit the mainstream-Australian naming system when they deal with Australian bureaucracy.

Some ethnic names are very difficult for English speaking monolingual Australians to pronounce. Or, the original language may be tonal. In tonal languages each word has a marker that indicates whether the tone of each word should be rising, falling, even, etc and therefore how it should be pronounced. Unfortunately, there is no easy way of indicating this in English.

3.3.2.2 The mode of address and/or naming system to use

Some people from some ethnic backgrounds may expect and prefer to be addressed very formally when in a formal situation such as a court, or when addressed by someone younger than themselves, or when addressed by someone of the opposite gender – for example, they may prefer to be addressed as Mr/Ms/Mrs given name, or Mr/Ms/Mrs family name. Others may prefer to be addressed by their given name only. Others (for example, Filipinos) may only know each other by a nickname that bears little resemblance to the person’s actual name, and be happy for you to use the same nickname.

3.3.3 Oaths and affirmations — see Section 4.4.2

See Section 4.4.2 for information on oaths and affirmations, as any differences that may be required in relation to oaths and affirmations will be largely dependent on a person’s religious affiliation or lack of religious affiliation, rather than their ethnic background.

Note:

however, that s 34 of the Oaths Act 1900 provides that a person witnessing a statutory declaration or affidavit must see the face of the person making the declaration or affidavit to identify the person. Therefore, the witness may request a person who is seeking to make a statutory declaration or affidavit to remove so much of any face covering worn by the person as prevents the authorised witness from seeing the person’s face. A “face covering” is defined as an item of clothing, helmet, mask or any other thing worn by a person that prevents their face from being seen.[39]

3.3.4 Appearance, behaviour and body language

3.3.4.1 Background information
  • It is commonly known that most people, including jurors, are likely to, at least in part, assess a person’s credibility or trustworthiness on their demeanour.

  • Yet, not only has demeanour been found to be an unreliable indicator of veracity,[40] but also our appearance, behaviour and body language are all heavily culturally-determined. For example, how a Chinese person appears and behaves in any particular situation is likely to be different from how a mainstream-English speaking Australian appears and behaves.

  • This means that it is vital that no-one in the court allows any culturally-determined assumptions about what they believe looks trustworthy and what does not to unfairly mislead or influence their assessment of the credibility or trustworthiness of a person from an ethnic or migrant background.

  • For many people from ethnic or migrant backgrounds, the traits that mainstream-English Australians regard as indicative of dishonesty or evasiveness (for example, not looking in the eye) are the very traits that are the cultural “norm” and/or expected to be displayed in order to be seen as polite and appropriate and not be seen as rude or culturally inappropriate.

  • Just as there are sub-cultures within mainstream-English speaking Australian culture that observe different styles of appearance, behaviour and body language, and also individuals who do not fit any particular cultural norm, there are similar examples within any other culture. So, it is also important not to assume that everyone born, for example, in Vietnam will behave in the same way, or to assess people from a Vietnamese background who do not seem to follow general Vietnamese patterns of behaviour as dishonest or lacking in credibility.

3.3.4.2 Examples of differences and ways in which you may need to take account of them

3.3.5 Verbal communication

3.3.5.1 Background information

People from ethnic backgrounds and particularly those from non-English speaking backgrounds may face a number of difficulties in relation to aspects of verbal communication in court proceedings.

For example, as indicated earlier in this Section, they may have:

  • A lesser ability or a complete inability to speak and/or understand (Australian) English.

  • A different communication style that makes it hard for others to adequately understand them, or means that they are wrongly assessed as, for example, evasive or dishonest.

  • A different understanding of how legal and court systems work and what they are capable of, and often little if no understanding of the Australian legal and court system. Many come from countries using completely different systems —for example, an inquisitorial system or have experienced an extremely repressive dictatorial or corrupt and in their view unjust system. They may not have any understanding of the jury system, cross-examination, what can and cannot be said in evidence, the importance of intent, what bail represents and means, etc. They may well have very good reasons to fear everything to do with the legal and court system and particular reason to fear the type of questioning that can occur under strenuous cross-examination. They may be survivors of torture and trauma thus making the court experience particularly terrifying.

It is critical that these matters are taken into account so as not to unfairly disadvantage the particular person. Just like everyone else, a person from an ethnic or migrant background who appears in court needs to understand what is going on, be able to present their evidence in such a manner that it is adequately understood by everyone who needs to be able to assess it, and then have that evidence assessed in a fair and non-discriminatory manner.

3.3.5.2 Avoid stereotyping and/or culturally offensive language
3.3.5.3 Take appropriate measures to accommodate those with a lesser ability or inability to speak or understand English
Note:

that an individual’s ability to communicate in English is often reduced in situations of stress — such as court appearances.

Note:

also that some people may be more able to understand English than to speak it, or more able to speak it than understand it.

Note:

also that someone who appears to speak perfect English may still find the language used in court or by lawyers very difficult to follow.

3.3.5.4 Take appropriate measures to accommodate those with a different style of communication
Background information

People from culturally and linguistically diverse backgrounds (whether English speaking or non-English speaking) may also have a different style of communication that is an inherent part of their culture and/or linguistic custom. They may display this difference when speaking in English, as well as when speaking in their own language via an interpreter.

Examples of different styles of communication

People from non-English speaking backgrounds may:

  • Use a much more roundabout style, for example, gradually building a picture before finally getting to the point that a mainstream English speaker would have started with — for example, Latin American Spanish speakers tend to do this.

  • Talk much more slowly (for example, some black Africans tend to do this), or much more quickly (for example, Latin American Spanish speakers tend to do this).

  • Use much less powerful sounding speechthat is, with many more hesitations, silences, hedges (“I think”, “it seems like”, “sort of ”, “actually”) and/or terms of politeness (sir, madam, please). Native English speakers tend to do this when they are from less powerful sub-groups or have a lesser level of formal education. People from non-English speaking backgrounds may do this even if they are from relatively powerful sub-groups within their culture and/or are highly educated. See also 3.3.4.2 above in relation to silence and/ or apparent avoidance in answering the question.

  • Talk more quietly or more submissively. This is often more pronounced in women than men, although men may also do it — for example, Thai women are generally expected to speak softly in order not to appear over-assertive and unfeminine. However, in many South East Asian cultures quiet modes of speaking are generally seen as polite for both men and women.

  • Prefer to agree with whatever is being put to them, or to come up with some form of compromise, rather than to openly disagree with whatever is being put to them — even when they do disagree. Some people who do this may try to indicate that they would prefer to come back to that subject later, others may not. For example, in Japan and in some South East Asian and African cultures it is generally “considered impolite to flatly disagree with a questioner”.[45] Japanese people, however, will tend to indicate that they’d like to return to the subject later on.

  • Use more, fewer or different hand gestures and body movements, and/or find the gestures and body movements used by mainstream English speaking Australians threatening, rude, or culturally unacceptable, to the extent that they retreat into silence or become unable to continue with their evidence — see 3.3.4 above for more about some of these differences. For example, it is generally considered culturally unacceptable for people from Thailand to touch someone else’s head. Some cultures are lower touch cultures than the mainstream-English speaking Australian culture — for example, in China and Vietnam even married couples would not generally kiss or hold hands in public. Whereas other cultures tend to be higher touch cultures (for example, Italian), or use touch to signify something different — for example, in Indonesia two men will often hold hands as a sign of friendship, not as a sign that they are gay partners.

Ways in which you may need to take account of these different styles of communication
3.3.5.5 Explain court proceedings adequately

People who come from countries with completely different legal and/or court systems are likely to find the Australian legal and court system confusing, incomprehensible and/or even threatening.

3.3.6 The impact of different customs and values in relation to such matters as family composition and roles within the family, gender, marriage, property ownership and inheritance

3.3.6.1 Background information
  • Each ethnic culture has its own customs and values in relation to such things as family composition, the role of the family versus the individual, individual roles within the family, gender roles, marriage, property ownership and inheritance.

  • Often these customs and values are heavily influenced by the particular religious affiliation of that ethnic group or sub-group. For more on religious affiliations, see Section 4.

  • These sets of customs and values can be slightly different or very different from mainstream English speaking Australian cultural norms.

  • Just as there are sub-cultures within mainstream English speaking Australian culture that have slightly or completely different customs and values about these fundamental aspects, and also families or individuals who do not seem to fit any particular cultural norm, there are similar examples within any other culture. So, it is important not to assume that everyone who is, for example, Arabic will adhere to a similar set of values or customs, or even to assume that everyone born, for example, in Lebanon will adhere to the same customs and values, or even to assume that all Christian Lebanese people will adhere to the same set of customs and values.

  • In addition, many people from ethnic and migrant backgrounds have varied their customs and values from those in their home country, in order, for example, to adapt to having a smaller family here, or to adapt to mainstream English speaking Australian customs and values, or because they are now in families comprising members from different ethnic backgrounds. In the reverse, some older generations within ethnic communities may hold fast to customs and values that have in fact shifted in their own home countries.

  • There may also be considerable inter-generational conflict as younger generations move away from the customs and values of their parents’ generation.

  • Similarly there may be considerable conflict or problems within mixed race families — for example, disinheritance, inability to negotiate differences of opinion about fundamental aspects of custom and values, vulnerability of one partner due to their lesser level of English or not having any of their own birth family members in Australia.

3.3.6.2 Examples of different customs and values[50]
  • In almost all ethnic cultures, the family is regarded as central and one of the most important parts of upholding the particular group’s traditions and culture.

  • In many ethnic cultures the family comes before the individual, for example, in South East Asian cultures, many Indian sub-continent cultures, many Arabic cultures, some Southern European cultures, many African cultures and most South Pacific Islander cultures. For example:[51]

    In many Chinese and Vietnamese families, hierarchical structure and Confucian values require members of the family to act according to their roles in the family (that is, as father, mother, brother, sister, aunt, uncle, etc); their individuality is subsumed within the family unit. This is reflected in the language, where most family members have a title indicating their position in the family (eg Anh Hai (Vietnamese) — eldest brother/brother number two). Many decisions, whether related to vocation, marriage, study or recreation are made collectively by the family, rather than the individual.

    This concept of the family before the individual may even extend to the “collective” or social group needing to come before the individual. For example, in Asian cultures that follow Confucian values, the good feeling of the group is seen as paramount which means that no-one should ever assert their individuality at the expense of the benefit or equanimity of the rest of the group.

  • Larger families and extended family networks. The family in many non-Northern European cultures is often much broader than the mainstream-English speaking Australian concept of the nuclear family of parents and children. The extended family may include aunts, uncles, siblings, nieces, nephews, cousins, grandparents, grandchildren and even in-laws and their families. Marriage and other such religious and cultural rituals may also be used to expand the family networks even further, drawing in people such as the best man or woman at a marriage, or a sponsor at a baptism.[52]

    For example, for Greeks the best man at weddings or the sponsor at a child’s baptism (“Koumparos”) is considered a spiritual relative and enters lasting and binding commitments; the sponsor of “Kivrelik” (the ritual performed through the rite of circumcision) becomes a part of the family of the young male and assumes duties related to the education and wellbeing of the young man. The Vietnamese consider in-laws as additional extended family, from whom emotional and financial support can be expected.

    There may also be strong obligations to overseas family members including the need to send money overseas, the need to sponsor family members into Australia, and the need to arrange marriages between people resident in Australia and people currently resident in the country of origin.

  • A much greater sense of the male as head of the family, with women taking more subordinate roles than men and maybe not allowed or expected to own or even jointly own property or inherit family assets. For example, a much more dominant role is generally given to men in most Arabic cultures, some African cultures and some South East Asian cultures. Although there are also some cultures which are, or have been, matriarchal (where women have taken the dominant role) — for example, in Kerala in Southern India. And others where women’s matrimonial property rights are legally protected — for example, Sri Lankan Tamils. The sons in the families of some cultures may also have specifically defined roles. For example, in the Tamil culture, it is the eldest brother’s role to earn and provide the dowry for the younger sisters.

  • Different courtship and marriage customs — including arranged marriages where the partner may be sought from overseas not just from within Australia (common in Indian and Bangladeshi cultures), a dowry needing to be provided by the family of the bride (common in some sub-continent Indian cultures), overseas polygamous marriages (common in some Arabic cultures and some sub- Saharan African cultures), and/or a very strong push to marry within the particular ethnic group (common in many ethnic cultures). In many families from ethnic or migrant backgrounds, the choice of marriage partner is a family not a personal decision (common in sub-continent Indian cultures, South East Asian, some African cultures and some Arabic cultures). For some of these families, marriage outside the community or family’s wishes could lead to exclusion from the family and/or community.

  • In some instances, less tolerant views about such things as de facto relationships, having children outside a marriage, abortion, and/or homosexuality — this is generally particularly the case for sub-Saharan African cultures, many Pacific Islander cultures, sub-Indian continent cultures and Arabic cultures, but is even more generally the case where the religion (or denomination or branch of religion) practised by the particular family group is not tolerant of such things — see Section 4.

  • Grandparents frequently live with and are cared for by a member of the family — for example, this is often the case in Greek, Vietnamese, African and Chinese families. Different cultures assign the caring responsibility to different members of the family: in many South East Asian cultures it is the eldest son who is expected to care for aged parents, whereas in Greek families it is the female members of the family who are expected to care for aged parents.

    Allied to the stronger concept of family, there may be stronger “concepts of family honour and shame”[53] which may act as a significant means of control and rationale for why members of particular ethnic groups act as they do. For instance:[54]

    Chinese families’ concept of honour (face) translates into being self sufficient as a unit, rarely seeking help outside the bounds of the family. Family honour relates to reputation, premarital virginity and adherence to moral values. Deviation from the relevant values and standards not only brings shame to the family but also affects the future and marriage prospects of young women.

    These concepts also impact on whether family members attend court to support an individual facing a court sentence, for instance, in Chinese and Vietnamese families:[55]

    The honour of the family as a whole is threatened by the individual’s transgression and therefore, family members may not be present not because they do not support the individual but because it is too shameful to do so publicly.

  • More extreme differences in behaviour and/or appearance between different levels, classes or “castes”. For example, South East Asian and sub-continent Indian cultures tend to be much more hierarchical and expect juniors to defer to seniors in workplaces in a much more structured and rigid way.

3.3.6.3 Ways in which you may need to take account of these customs and value differences

3.3.7 Directions to the jury — points to consider

As indicated at various points in 3.3 above, it is important that you ensure that the jury does not allow any ignorance of cultural difference, or any stereotyped or false assumptions about people from particular ethnic or migrant backgrounds to unfairly influence their judgment.

3.3.8 Sentencing, other decisions and judgment or decision writing — points to consider

3.4 Further information or help

  • Interpreting and translating services — see 3.3.1.3 above.

  • The following NSW government agency can provide further information or expertise about migrant or ethnic communities and their cultural or language differences or needs, and also about other appropriate community agencies, individuals, and/or written material, as necessary.

    Multicultural NSW
    PO Box A2618
    Sydney South NSW 1235
    Ph: (02) 8255 6767
    Fax: (02) 8255 6868
    www.crc.nsw.gov.au

    Translating and Interpreting Service (TIS National)
    Ph: 131 450
    www.tisnational.gov.au

    Cultural Advice
    Local agencies such as a Migrant Resource Centre, or an ethno-specific cultural organisation may also be useful sources of further information.

    Judicial Council on Cultural Diversity
    PO Box 1895
    Canberra ACT 2600
    Ph: (02) 6162 0361
    Email: secretariat@jccd.or
    www.jccd.org.au

3.5 Further reading

Australasian Institute of Judicial Administration Inc, Bench Book for Children Giving Evidence in Australian Courts, 2009, Melbourne, at www.aija.org.au/Child%20Witness%20Bch%20Bk/Child%20Witness%20BB%20Update%202012.pdf, accessed 1 March 2013.

Australian Bureau of Statistics, website at www.abs.gov.au/census, accessed 16 May 2013.

Australian Law Reform Commission, Multiculturalism and the law, ALRC Report No 57, 1992, Canberra, at www.alrc.gov.au/report-57, accessed 17 July 2014.

J Downes, “Oral Evidence in Arbitration”, speech to the London Court of International Arbitration’s Asia-Pacific Users’ Council Symposium, Sydney, 14 February 2003, at www.aat.gov.au/SpeechesPapersAndResearch/speeches/downes/oral.htm, accessed 15 May 2013.

R French, “Equal justice and cultural diversity – the general meets the particular”, paper presented at the Judicial Council on Cultural Diversity, Cultural Diversity and the Law Conference, 14 March 2015, Sydney at www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj14mar15.pdf, accessed 3 June 2015.

S Hale, The discourse of court interpreting, John Benjamins Publishing Company, Amsterdam and Philadelphia, 2004.

S Hale, “Helping interpreters to truly and faithfully interpret the evidence: the importance of briefing and preparation materials” (2013) 37(3) Aust Bar Rev 307.

S Hale, “Interpreter Policies, Practices and Protocols in Australian Courts and Tribunals: a National Survey”, Australasian Institute of Judicial Administration Inc, 2011 at www.aija.org.au/online/Pub%20no89.pdf, accessed 16 May 2013.

S Hale and L Stern, “Interpreter quality and working conditions: comparing Australian and international courts of justice” (2011) 23(9) JOB 75.

S Hale, “The challenges of court interpreting — intricacies, responsibilities and ramifications” (2007) 32(4) Alternative Law Journal 198.

S Hale (ed), Translation & Interpreting. The international journal of translation and interpreting research, at www.trans-int.org, accessed 15 May 2013.

Judicial Council on Cultural Diversity, Recommended National Standards for working with interpreters in courts and Tribunals, 2017, at http://jccd.org.au/publications/, accessed 26 June 2018.

MD Kirby, “Judging: Reflections on the Moment of Decision” (1999) 4 TJR 189.

J Kowalski, “Managing courtroom communication: reflections of an observer”, (2008) 20(10) JOB 81.

E Kyrou, “Hot topic: judging in a multicultural society” (2015) 2(3) Law Society of NSW Journal 20.

W Martin, “Access to justice in multicultural Australia”, paper presented at the Judicial Council on Cultural Diversity, Cultural Diversity and the Law Conference, 13 March 2015, Sydney.

S Mukherjee, “Ethnicity and Crime”, Trends and Issues in Crime and Criminal Justice No 117, May 1999, Australian Institute of Criminology, at www.aic.gov.au/publications/current%20series/tandi/101-120/tandi117.html, accessed 17 July 2014.

National Accreditation Authority for Translators and Interpreters, website at www.naati.com.au, accessed 15 June 2018.

M Perry and K Zornada, “Working with interpreters: judicial perspectives”, paper presented at the Judicial Council on Cultural Diversity, Cultural Diversity and the Law Conference, 13 March 2015, Sydney at www.fedcourt.gov.au/publications/judges-speeches/justice-perry/perry-j-20150313, accessed 3 June 2015.

Judicial Commission of NSW, Sentencing Bench Book, 2006, under “Race and ethnicity”, at [10-470] at www.judcom.nsw.gov.au, accessed 15 May 2013.

L Re, “Oral Evidence v Written Evidence: The Myth of the ‘Impressive Witness’” (1983) 57 Australian Law Journal 679.

F Stillwell, “TINA — Rest In Peace” Workers Online, Issue No 151, 6 September 2002, at http://workers.labor.net.au/151/c_historicalfeature_frank.html, accessed 15 May 2013.

Supreme Court of Queensland, Equal Treatment Benchbook, 2005, Supreme Court of Queensland Library, Brisbane, Chapters 4 and 6, at www.courts.qld.gov.au/information-for-lawyers/benchbooks-and-ucpr-bulletin, accessed 15 May 2013.

D Tran, “Vietnamese Community” (2002) 5(4) TJR 359.

3.6 Your comments

The Judicial Commission of NSW welcomes your feedback on how we could improve the Equality before the Law Bench Book.

We would be particularly interested in receiving relevant practice examples (including any relevant model directions) that you would like to share with other judicial officers.

In addition, you may discover errors, or wish to add further references to legislation, case law, specific Sections of other Bench Books, discussion or research material.

Section 11 contains information about how to send us your feedback.



[1] Unless otherwise indicated, the statistics in 3.1 are drawn from the NSW Government’s Trade and Investment website at www.business.nsw.gov.au, first accessed 15 May 2013, the Australian Bureau of Statistics (ABS) website at www.censusdata.abs.gov.au/census_services/getproduct/census/2011/quickstat/1; accessed 15 May 2013 Department of Immigration and Border Protection, The people of Australia: statistics from the 2011 census, 2014, at www.border.gov.au/ReportsandPublications/Documents/research/people-australia-2013-statistics.pdf, accessed 4 June 2015, particularly Table 2 (All states and territories compared).

[2] It is anticipated that the next census will be held in 2021.

[3] ABS, Australian Demographic Statistics, Dec 2016, ABS cat no 3101.0, released 27.6.17 at www.abs.gov.au/ausstats/abs@.nsf/mf/3101.0, accessed 19 September 2017.

[4] Non-main English speaking country (NMESC) excludes people born in Australia, New Zealand, United Kingdom, Ireland, South Africa, United States of America and Canada.

[5] “Main English speaking countries” (MESC) are identified in ABS, Australian Standard Classification of Countries for Social Statistics (ASCCSS), ABS cat no 1269.0 to include Australia, New Zealand, United Kingdom, Ireland, South Africa, United States of America and Canada.

[6] Department of Immigration and Border Protection, The people of Australia: statistics from the 2011 census, 2014, at www.border.gov.au/ReportsandPublications/Documents/research/people-australia-2013-statistics.pdf, accessed 4 June 2015, particularly chart 12 (Local government areas with highest number who speak English now well or not at all).

[7] OECD, Data, Migration, native-born unemployment and foreign-born unemployment at https://data.oecd.org/migration/native-born-unemployment.htm#indicator-chart and https://data.oecd.org/migration/foreign-born-employment.htm#indicator-chart, accessed 9 June 2015.

[8] ABS, Characteristics of recent migrants, Australia, Nov 2016, ABS cat no 6250.0 at www.abs.gov.au/ausstats/abs@.nsf/mf/6250.0, Table 3, accessed 19 September 2017.

[9] S Mukherjee, “Ethnicity and Crime”, Trends and Issues in Crime and Criminal Justice No 117, May 1999, Australian Institute of Criminology, at www.aic.gov.au, accessed 6 Nov 2012; S Poynting, G Noble, P Tabar, Middle Eastern appearances: “Ethnic gangs, moral panic and media framing” (2001) 34 Australian and New Zealand Journal of Criminology 67.

[10] Ethnic Affairs Commission of NSW, Not a single problem: Not a single solution: Report to the Premier & Minister for Ethnic Affairs on the recent clashes between youth in Bankstown & Marrickville, 1986, at 3.

[11] Australian Bureau of Statistics, 4517.0 — Prisoners in Australia, NSW, 8 December 2016, at http://www.abs.gov.au/ausstats/abs@.nsf/mf/4517.0, accessed 9 November 2017.

[14] Unpublished data supplied by the Department of Juvenile Justice, 16 May 2013.

[15] See statistics and information contained in the Annual Reports of the Anti-Discrimination Board of NSW, at www.lawlink.nsw.gov.au/adb, accessed 16 May 2013.

[16] Premier’s Memorandum M2012-01 Policy on Identity and Full Face Coverings for NSW Public Sector Agencies and the policy on Identity and Full Face Coverings, developed by the then Community Relations Commission (now Multicultural NSW), addresses the need for laws that allow for the identification of people in certain circumstances. The Identification Legislation Amendment Act 2011 amended the Law Enforcement (Powers and Responsibilities) Act 2002, the Court Security Act 2005 and the Oaths Act 1900 to permit particular officers to require, in certain circumstances, the removal of a face covering.

[17] Much of the information in 3.3 is sourced from the Judicial Council on Cultural Diversity, Recommended National Standards for working with interpreters in courts and Tribunals, 2017, at http://jccd.org.au/publications/; Supreme Court of Queensland, Equal Treatment Benchbook, 2005, Supreme Court of Queensland Library, Brisbane, at www.courts.qld.gov.au/information-for-lawyers/benchbooks-and-ucpr-bulletin, accessed 15 May 2013; Chapter 6; the National Accreditation Authority for Translators and Interpreters (NAATI) website at www.naati.com.au and NAATI Concise Guide for Working with Interpreters and Translators, 2003.

[18] NAATI Concise Guide for Working with Interpreters and Translators, ibid p 2. Supreme Court of Queensland, Equal Treatment Benchbook, ibid p 62; Judicial Council on Cultural Diversity, Recommended national standards for working with interpreters in courts and tribunals, at http://jccd.org.au/publications, p 4.

[19] JCCD, ibid at p 117.

[20] Premier’s Memorandum M2011-06, Language Services Provision in Multicultural NSW, issued in February 2011.

[21] (1998) 196 CLR 354 at [82]–[83]. See also Dietrich v The Queen (1992) 177 CLR 292 at 330-1; Ebatarinja v Deland (1998) 194 CLR 444 at [27]; R v Johnson (1987) 25 A Crim R 433 and Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 at 75–77.

[22] Above n 17 at p 94.

[23] This question is derived from the JCCD, Recommended national standards for working with interpreters in courts and tribunals, above n 17, p 117 and ff.

[24] This publication may be found at the JCCD website at http://jccd.org.au/publications, accessed 20 March 2018. See also a summary of the publication in (2018) 30 JOB 36.

[25] See NAATI’s online directory for a list of accredited translators and interpreters, at www.naati.com.au, accessed 15 May 2018. The NAATI website provides online verification of NAATI certification.

[26] (1993) 70 A Crim R 515 at 516.

[27] Recognised Practising is an award in a totally separate category from certification. It is granted only in languages for which NAATI does not test and it has no specification of level of proficiency. Recognised Practising does not have equal status to certification, because NAATI has not had the opportunity to testify by formal assessment to a particular standard of performance. It is, in fact, intended to be an acknowledgment that, at the time of the award, the candidate has had recent and regular experience as a translator and/or interpreter, but no level of proficiency is specified. Source: www.naati.com.au, accessed 5 June 2018.

[28] National Accreditation Authority for Translators and Interpreters, NAATI Concise Guide for Working with Interpreters and Translators, n 17.

[29] The Code of Ethics and a register of members are available on the AUSIT website at www.ausit.org, accessed 14 June 2018.

[30] S Hale, “Helping interpreters to truly and faithfully interpret the evidence: the importance of briefing and preparation materials” (2013) 37(3) Aust Bar Rev 307.

[31] The guidelines have been developed by Professor Sandra Hale of the UNSW. Refer also to the JCCD, Recommended national standards for working with interpreters in courts and tribunals, above n 17, “Guidelines for judicial officers”, pp 12-13.

[33] S Hale, The discourse of court interpreting, John Benjamins Publishing Company, Amsterdam and Philadelphia, 2004;

[34] Example given by Professor Sandra Hale, “Interpreters in the courtroom”, The Law Report, 16 September 2008, at www.abc.net.au/rn/lawreport/stories/2008/2364837.htm, accessed 16 June 2009.

[35] See s 26 of the Evidence Act 1995 (NSW), dealing with the court’s control over questioning of witnesses.

[36] S Hale, “The challenges of court interpreting: intricacies, responsibilities and ramifications” (2007) 32(4) Alternative Law Journal, pp 198-202.

[37] Examples cited sourced from author’s personal knowledge and the Supreme Court of Queensland, Equal Treatment Benchbook, above n 17, pp 79–81.

[38] D Tran, “Vietnamese community” (2002) 5(4) TJR 359 at p 362.

[39] See s 3 (the definition of “face covering”) of the Law Enforcement (Powers and Responsibilities) Act 2002.

[40] See for example, L Re, “Oral Evidence v Written Evidence: The Myth of the ‘Impressive Witness’” (1983) 57 ALJ 679; M Kirby, “Judging: Reflection on the Moment of Decision” (1999) 4 TJR 189 at 193–4; and Downes J, “Oral Evidence in Arbitration”, speech to the London Court of International Arbitration’s Asia-Pacific Users’ Council Symposium, Sydney, 14 February 2003, at www.aat.gov.au, accessed 15 May 2013. Kirby J also addressed this theme in a judicial context in State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq)(1999) 160 ALR 588.

[41] Supreme Court of Queensland, Equal Treatment Benchbook, above n 17, p 76.

[42] Supreme Court of Queensland, Equal Treatment Benchbook, above n 17, p 77.

[43] Note that s 41 of the Evidence Act 1995 (NSW) provides for the statutory control of improper cross-examination in both civil and criminal proceedings. The section is in line with the terms of the repealed s 275A of the Criminal Procedure Act 1986, rather than the common law position. Section 41 imposes an obligation on the court to disallow a “disallowable question” and is expressed in terms of a statutory duty whether or not objection is taken to a particular question (s 41(5)). A “disallowable question” is one which is misleading or confusing (s 41(1)(a)), unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive (s 41(1)(b)), is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate (s 41(1)(c)), or has no basis other than a stereotype (s 41(1)(d)). A question is not a “disallowable question” merely because it challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness (s 41(3)(a)) – or because the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness (s 41(3)(b)). Sections 26 and 29 of the Evidence Act also enable the court to control the manner and form of questioning of witnesses, and s 135(b) allows the court to exclude evidence if its probative value is substantially outweighed by the danger that the evidence might be misleading or confusing.

[44] ibid.

[45] Supreme Court of Queensland, Equal Treatment Benchbook, above n 17, p 75.

[47] above n 41.

[48] Supreme Court of Queensland, Equal Treatment Benchbook, above n 17, p 76.

[49] above n 41.

[50] Much of the information in 3.3.6.2 is sourced from the Supreme Court of Queensland, Equal Treatment Benchbook, above n 17.

[51] ibid, p 40.

[52] ibid, p 41.

[53] ibid, p 40.

[54] ibid, p 41.

[55] ibid.

[56] above n 43.

[58] Judicial Commission of NSW,Criminal Trial Courts Bench Book, 2nd edn, 2002 at https://jirs.judcom.nsw.gov.au, accessed 16 May 2015, and www.judcom.nsw.gov.au.

[59] Judicial Commission of NSW, Local Courts Bench Book, 1988 at https://jirs.judcom.nsw.gov.au and www.judcom.nsw.gov.au, accessed 16 May 2013.

[60] See also Judicial Commission of NSW, Sentencing Bench Book, 2006, “Race and ethnicity” at [10-470] at www.judcom.nsw.gov.au, accessed 16 May 2013, and R v Henry (1999) 46 NSWLR 346 at [10]–[11].

[61] See Pt 3, Div 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Charter of Victims Rights (which allows the victim access to information and assistance for the preparation of any such statement). Note that any such statement should be made available for the prisoner to read, but the prisoner must not be allowed to retain it.