Handbook for Judicial Officers — Communication

Judicial officers have an overriding duty to ensure a fair trial. Improving access to justice and ensuring procedural fairness require that a witness or party to court proceedings understands and can communicate effectively. Justice can be undermined where a communication problem limits the ability of a person to participate effectively in legal and court processes. A non-English speaking person, or a person with limited English, may be disadvantaged in police interviews, when instructing counsel, in giving evidence or understanding trial proceedings. Arguably, strategies to improve communication can only go so far to address unfairness; resolution ultimately requires that courts insist that miscommunication issues are addressed before proceeding with trials.^[3] While there is no specific “right” to an interpreter, procedural fairness requires that the language needs of court users be accommodated. Various statutory provisions facilitate the use of an interpreter, for example, s 30 of the Evidence Act 1995 (NSW).

In 2017, the Judicial Council on Diversity and Inclusion (JCDI) developed the Recommended National Standards for Working with Interpreters in Courts and Tribunals (Standards) to establish recommended and optimal practices for, amongst others, judicial officers to assess the need for an interpreter, conduct proceedings with an interpreter and undertake training for working with interpreters.^[4] The Standards provide a practical four-part test to determine the need for an interpreter.^[5]

NAATI is the national standards and certifying body for translators and interpreters working in Australia.

NAATI was established in 1977 primarily to support the wave of post-World War II non-English speaking migrants. Having a body to accredit practitioners was considered important to ensure non-English speaking people could get equal access to critical public services with the support of interpreters who met an appropriate standard. Forty years on, access to social justice and public services remain central to NAATI’s mission, although in recent times more emphasis has been placed on improving quality and standards of a developing profession.

The credentialing system in Australia is unique in many ways and largely stems from NAATI’s origins being rooted in the policy of nation building and the migration program rather than a language-related policy.^[6] NAATI’s origins have had positive and negative consequences: the credentialing system is broader than any comparable international body’s, but has somewhat limited the industry’s development as a recognised profession.

The linguistic profile of Australia presents another interesting challenge. Australia is among the most monolingual nation where English is the dominant language but there is also a wide range of languages that a relatively small number of people use. This diversity continues to expand due to Australia’s humanitarian refugee program.^[7]

This conflict between the dominance of English and the expanding number of migrant languages represents a significant challenge to maintaining a comprehensive, high quality and consistent certification system for translating and interpreting services. The practical implications of this are experienced nowhere more obvious than the judicial system.

The challenges are further compounded by the absence of underpinning legislation. Unlike other professions where formal regulation governs registration, the credentialing system for translating and interpreting is limited to the policies of the jurisdiction where practitioners operate and is largely limited to the public sector. When combined with other historical industry issues such as workforce casualisation, fragmentation, and poor remuneration, these challenges pose a significant risk to quality and consistency, and in the context of the justice system, a risk to the effective administration of justice itself.

While this lack of regulatory or legislative power adds to the challenge, it should not be used as an excuse not to pursue positive progress. NAATI has engaged collaboratively with its stakeholders both within the translating and interpreting sector and externally with academics, government and consumer organisations, to address several key issues affecting the overall quality and integrity and therefore the reputation of the sector.

The first major review of NAATI was in 2012 with Professor Sandra Hale’s report.^[8] This identified a number of concerns with the reliability and consistency of the NAATI testing regime that had not been comprehensively reviewed for almost three decades. This report became the catalyst for NAATI to begin a more comprehensive process, with the support of key stakeholders, to professionalise the translating and interpreting sector. A significant step in this journey was the introduction of the NAATI certification system^[9] to replace the previous accreditation system.

The new certification system was introduced in 2018. As well as providing a more robust and comprehensive testing and assessment regime, changes included the introduction of mandatory minimum training requirements and more emphasis on formal training as the primary pathway to certification. In order to maintain their certification, practitioners are required to attend a minimum level of ongoing professional development and demonstrate currency of practice through the maintenance of an activity log of work assignments to submit with their application for recertification.

Significantly, the certification system also introduced a specialisation for interpreting in the legal context. To be eligible to sit for the certified specialist interpreter (legal) test, which became available in 2021, candidates must already be a certified interpreter, complete specific training and have demonstrated experience in legal interpreting work complemented by relevant professional development.

The certification model includes credentials that recognise practitioners for which there are no reliable or effective means of testing through to specialist interpreters and advanced translators for which formal education will be the primary pathway. The certification types for interpreters are as follows:

In March 2021, NAATI launched a continuous improvement program with the aim to refine some of the certification system’s key areas. Since the launch of the certification system in 2018, NAATI has delivered certification testing in more than 50 languages, and has accumulated a broad range of data relevant to continuing improvement of the system. The first phase of the program has identified 20 recommendations to refine the current certification tests.

Throughout 2016 and 2017, NAATI participated on the JCDI Working Group to develop the Recommended National Standards for Working with Interpreters in Courts and Tribunals.^[10] These Standards establish recommended and optimal practices for Australian courts, with the aim of improving access to justice and procedural fairness. Importantly, the Model Rules recognise and affirm the important role of interpreters by confirming their status as officers of the court, which is a significant step for the recognition of the profession. In April 2019, an addendum was published in the Standards outlining NAATI’s certification model.^[11]

A post-implementation review was undertaken which recommended, among other things, an update to the Standards. The work to review and update the Standards, which was funded by NAATI, continued throughout 2021 and an updated version has been developed and approved. The new Recommended National Standards were launched in April 2022.^[12] The key changes include:

The JCDI has also published resources, including factsheets and informative videos, that provide guidance on how to understand and implement the Standards.^[13]

NAATI recommends that wherever possible in legal and court proceedings, a Certified Interpreter, or a Certified Specialist Legal Interpreter (when available) is engaged. The interpreter’s certification can be verified by checking their practitioner identification on NAATI’s on-line verification tool at www.naati.com.au.

It is acknowledged that a NAATI credential, even under the new certification system, does not guarantee relevant expertise in all legal cases, especially as there are languages where only a lower level of certification is available. As Fraser also highlights, NAATI certification does not in itself ensure that interpreters are appropriately independent of the investigation, a key factor in avoiding unconscious bias.^[14] While not eliminating such a risk completely, NAATI considers that the certification system, whereby compliance with the Professional Code of Ethics is required to maintain certification, is a significant mitigation of the risk of an interpreter acting where a conflict of interest is possible.

There is clearly no magic solution to all the issues and challenges for quality interpreting service in courts. NAATI considers that a collaborative approach and shared responsibility is essential in addressing them. The Recommended National Standards for Working with Interpreters and Tribunals are an excellent example of such collaboration and NAATI strongly supports these Standards. Similarly, the introduction of the new certification system alone will not change the profession overnight, however it does mean that anyone who relies on the services of an interpreter can feel much more confident knowing that the certified practitioner they engage: