The Recommended National Standards for Working with Interpreters in Courts and Tribunals (to which I will refer as “the Recommended Standards”) were first introduced in 2017, and a second edition was published in 2022.⁴ A convenient summary of the extent of the formal adoption of the Recommended Standards may be found in an article by the Honourable Justice Melissa Perry of the Federal Court of Australia which appeared in the Australian Law Journal.⁵

The inspiration for my remarks in this paper is my sense that the process of adopting and implementing the Recommended Standards has come to a critical point. It seems to me that unless that process is reinvigorated, there is a real risk that much good work may be lost, and the entirely understandable aspirations of the interpreting (and translating) profession may not be achieved.

After saying something about the perspective which I bring to the discussion, I will make three points. First, I will demonstrate that what might be called a culture of interpreting has deep historical roots in the civilisation which has given birth to Australian legal and cultural tradition. Secondly, I will argue that while much has been achieved with the Recommended Standards, there is still a long way to go. Thirdly, I will outline for your consideration what I suggest may be a means to ensure the promise of the Recommended Standards is fulfilled.

I am a first generation Australian. My parents were stateless post-WWII migrants to Australia. As best I can tell, they came here because that is where they had the chance to be sent, rather than by any specific choice on their part. For people like them anywhere like Canada, the United States, Australia or New Zealand was acceptable, as long as it wasn’t Europe (or in my mother’s case, forced repatriation to the USSR). My parents met in Sydney many years after they had come here.

The polities of their birth no longer exist. My father was born in the dying days of WWI and the Austro-Hungarian Empire in what is now the Czech Republic. My mother was an ethnic Russian born near today’s Dniepro — then Dnipropetrovsk in Stalin’s USSR — but which today tragically features in our daily news as eastern Ukraine.

While neither of them spoke English when they arrived, they both certainly spoke it perfectly well by the time I came along. However, we rarely spoke it at home. I am eternally grateful that they insisted I learn their native languages, together with other European languages they had learnt in the circumstances of their lives. To their respective last days, English was not our primary means of communication. Later in life I had the benefit of formal language studies.

At this point I gladly acknowledge what I call Hale’s Law. This was Professor Sandra Hale’s admonition to me at one of our first meetings when we started drafting the Recommended Standards. She fixed me with a steely Spanish eye, rather like a bullfighter imposing order in the ring, and said: “Just remember that being bilingual doesn’t make you an interpreter.” Point taken.

However, what I do think I have brought to the journey of the Recommended Standards is a close, personal understanding of the challenges and subtleties of the process of interpretation, as well as the lived experience of functioning in a country whose dominant culture is solidly monolingual and very Anglocentric, when one’s origins are neither of those things. I intend absolutely no criticism by those descriptions.

Speaking as a judge, I can say that being involved with the drafting and implementation of the Recommended Standards has been as deeply professionally satisfying as it was unexpected. Not only have I had the privilege of working with and befriending leaders of the interpreting profession, but I think it is fair to say that, unusually for any judge, I have been able to play a small part in bringing about real systemic change in the administration of justice.

What I have just described is also quite apart from the benefit I have gained in my own judicial praxis. Many people are surprised when I tell them how often, as an exclusively civil trial judge in a superior court, my cases involve parties and witnesses who require the assistance of an interpreter. For example, most of the trials over which I presided during COVID-19, and the period immediately thereafter, involved all (or nearly all) of the evidence being given in Mandarin. While Mandarin has been the most common, other languages such as Italian, Macedonian, Serbian and Greek have also been heard in my courtroom. I confess I was a little disappointed when a trial involving evidence to be given in Russian settled on the morning of the hearing.

The history of interpreting is well beyond the scope of this paper. However, a brief, even random, survey of the story of interpreting can provide a useful context. One interesting feature of that history is that scholars plausibly suggest that a paucity of specific references to interpreters in the sources demonstrates how unremarkable and integral they were in a world where but a moment’s thought demonstrates that relations between races and nations must have involved interpreters.⁶

In the Judeo-Christian canon, one of the earliest examples I can find, passing over the story of the Tower of Babel, is the encounter between Joseph (who had become an assimilated Egyptian) and his brothers. The book of Genesis records that when his brothers spoke amongst themselves, “they did not know that Joseph understood them, since he spoke with them through an interpreter”.⁷ In the New Testament, the capacity to be understood in a multiplicity of languages was an integral part of the miracle of Pentecost.⁸

Those who aspired to the highest offices in the Byzantine empire had to be of interpreter standard at least from Latin or some other language into Greek. My favourite title, to which I would gladly aspire, is the Logothete of the Drome, the Drome being the Byzantine postal and interpretation service. The Logothete was its senior official and he came to occupy the position of Prime Minister to the Emperor. I am uncertain whether this is the same position that is sometimes referred to as the Grand Interpreter.

The great voyages of exploration needed interpreters. An example close to home is Tupaia, the Polynesian priest, navigator and interpreter who travelled with James Cook.

Finally, and most pertinently to the present topic, it is important to recall that professional, simultaneous interpretation is generally regarded as having originated with the Nuremberg trials. Again a little closer to home, a recent monumental history of the Tokyo war crimes trials (the chief judge of which was Queensland Chief Justice Sir William Webb) records the presence of “a host of translators … and state-of-the-art headphones for live translation in Japanese and English”.⁹

What this very short list of examples demonstrates is that there has been what I could call a culture of interpreting — an ingrained recognition of its necessity and importance — since the Tower of Babel. Like many such things, it is obvious once you think about it. However, I suggest that one of the challenges in this country is the absence of such a culture. While I will not develop why I say this in any detail, as a prompt for reflection I will briefly suggest three possible reasons.

First, we are insular — literally an Anglophone island continent. I think that explains so much about Australia, but in this context it means that unlike Europe or Asia we are not as a nation constantly bumping up against other languages and cultures in a day-to-day way.

To give an example, in 2023 I was at an international conference in Rome. There were five official languages (English and four continental European languages due to the nature of the organisation) and proceedings were simultaneously translated into each of them. However, most attendees were fluent in one and could work adequately in another one or two. There were some diplomats in the room who were proficient in all five. The polyglot environment felt entirely normal in a way it does not in Australia.

Secondly, insofar as the non-First Nations population is concerned, the great Australian multicultural project, whose initial articulation as such I vividly remember under the Whitlam Government in the early 1970s, is in reality a project of assimilation in two generations. I do not suggest that is sinister and I am not saying that is necessarily a bad thing. It is nevertheless certainly my observation and lived reality: from multilingual migrant, to bilingual first generation, to fully absorbed monolingual Anglophone in the second generation. Again from personal experience, I know of that process being accelerated in migrant families where a deliberate and entirely understandable decision was taken from the day of arrival that “we are Australian now and we (including our Australian born children) will only speak English”.

Thirdly, in relation to our First Nations people, at least two factors may be identified. First, there is the shameful and deliberate eradication of First Nations languages that was an essential part of now discredited policies of so-called protection and assimilation. Secondly, the vast majority of Australians never encounter a First Nations person, let alone need interpretation from a First Nations language into English.

Given where things were when the Recommended Standards project began several years ago, it should be acknowledged with genuine satisfaction that a great deal has been achieved. Formal progress is set out in Justice Perry’s article, to which I referred earlier.¹⁰ I will not take time to repeat here what her Honour sets out with her characteristic thoroughness. However, it should be noted that varying degrees of formal adoption of the Recommended Standards have occurred in a number of jurisdictions.

Here in NSW, Pt 31, Div 3 together with Sch 7A was introduced into the Uniform Civil Procedure Rules 2005 (UCPR) in late 2019. In March 2020, this was supplemented in my Court by the commencement of Practice Note SC Gen 21, which applies to all civil proceedings in the Supreme Court. The operation of the UCPR and Practice Note has already been the subject of judicial consideration.¹¹

So far as I am aware, what has happened in this State represents the most complete formal adoption of the Recommended Standards in Australia. Several other jurisdictions around the country have sought to implement the Recommended Standards by means of practice notes or directives by heads of jurisdiction.

Looking at progress anecdotally, I can say with confidence that in my courtroom I have seen the benefits of the implementation of the Recommended Standards. I will give three examples.

First, the quality of translated affidavits has improved immeasurably. I suspect that is because of the application of Hale’s Law, so that bilingual but linguistically unqualified solicitors are no longer permitted to translate the culturally and linguistically diverse (CALD) client’s instructions into English.

Secondly, an insistence on using two interpreters taking 20-minute turns (or as they may agree) has led, in my experience, to better interpretation and more efficient use of court time.

Thirdly, I can tell when interpreters have been briefed. Again, things just go far more efficiently. I shall return to the question of briefing in a moment.

Apart from my personal experience, I am also pleased to report that the advisory committee on the Recommended Standards, on which I continue to serve, has received many positive reports from interpreters of their experiences where the Recommended Standards are observed.

However, I must also record that many anecdotal reports of very poor treatment of interpreters continue to find their way to our committee, both formally and informally. That is, to say the least, disappointing and is clear evidence of how much remains to be done.

I will now turn to some examples of what I suggest remains on the “to do” list. They are in no particular order and I am sure do not include everything that many would have on a similar list.

The Recommended Standards were primarily drafted for civil matters. A separate version for use in criminal matters, including in relation to the interviewing of suspects and witnesses, should be produced. That will require input from criminal law specialists.

Much work needs to be done on the training of advocates in examining CALD witnesses. There is an irony in this observation. It is well understood that long, jargon-laden questions, multiple propositions in one question and the use of the double negative are all inimical to effective communication with CALD witnesses. The irony is that those bad habits make the efficient and effective leading of evidence from native English speakers just as difficult. In other words, everyone would benefit if the best practice for examining witnesses set out in the Recommended Standards was applied all the time, and not just when an interpreter is required.

Courts and tribunals have been slow to adopt even relatively low-cost technical solutions that would improve the working conditions and efficiency of interpreters. I am thinking, for example, of equipment that makes even simultaneous interpretation possible, or at least removes the need for interpreters to sit next to witnesses in the witness box or the dock.

A major issue is the continued resistance to briefing interpreters with information to assist them in preparing to undertake their work. This resistance continues both to surprise and disappoint. Even more troubling are anecdotal reports that some interpreters are losing work when they ask for a briefing. The Recommended Standards are clear on why even the most basic briefing of an interpreter can enhance the administration of justice. It seems that a lot of education of the profession remains to be done.

While it is not a complete explanation, I cannot help but think this reluctance to briefing is a symptom of the failure to accept interpreters as officers of the court: see Standard 18 of the Recommended Standards. I must acknowledge that this description has met with resistance from courts.

So it is that in my own Court a compromise was reached that one of the purposes of Pt 31, Div 3 of the UCPR was expressed as being “to recognise the special status of an interpreter in the administration of justice by declaring the duties of an interpreter in relation to the court and the parties to proceedings” [emphasis added].¹² This is then given effect in UCPR r 31.60:

While I understand the reservations of my colleagues, I must express my respectful but nevertheless strong disagreement. The duties which I have set out are identical in substance to the types of duties owed by legal practitioners, court appointed liquidators, receivers and others who are uncontroversially described as officers of the court.

In my respectful view, interpreters should continue to point to Standard 18 as a source of authority that they are not mere functionaries or supernumeraries, but essential participants in the due administration of justice and of no less importance than the lawyers in the room, including the judge. A simple proof of this proposition is that a failure by an interpreter to meet the obligations set out in the Recommended Standards and the Code of Conduct¹³ can lead to a miscarriage of justice.

All of this brings me to the largest item of all on the “to do” list. The point I want to make is exemplified by the 2023 decision of Justice Solomon of the Supreme Court of Western Australia in Murray v Feast.¹⁴

In that case, his Honour set aside Mr Murray’s conviction by a magistrate for aggravated common assault. Mr Murray was a Walmajarri man who gave evidence that he spoke Walmajarri, but also Mardok, Manjaderra, and “mixed languages”.¹⁵ He gave evidence with the assistance of an interpreter.

An important issue on appeal was that the magistrate had directed that the interpreter should not interpret English words used by Mr Murray notwithstanding the interpreter was attempting to explain that Mr Murray was speaking Aboriginal English or Kriol, so it could not be assumed that when Mr Murray used an English word it meant the same thing in standard Australian English.

In his decision, his Honour set out a detailed analysis of the legal principles in relation to communication difficulties encountered by First Nations people in legal environments and the role of interpretation to ensure a fair trial. His Honour said [footnotes omitted]:¹⁶

If I may respectfully say so, it demonstrates how far things have come that a judicial officer should write with such empathy and nuance about the importance of, among other things, linguistic identity and the need to ensure linguistic presence in the courtroom. At the same time, the largest item on my “to do” list is vividly demonstrated by that part of his Honour’s reasons where he considers the Recommended Standards and concludes that in WA “The Standards do not have the force of law; they are not binding on judicial officers; they are aspirational.”¹⁷

So there is the biggest task: to ensure that the Recommended Standards cease to be aspirational and become binding in every court and tribunal. The reason that the Recommended Standards contain model rules and a model practice note is because the drafting committee understood from the outset that the law is a system of rules and that lawyers are creatures of rules. If something is not in the rules, it will not be done. If you will excuse a classical flourish, in the absence of becoming binding rules, the Recommended Standards will languish as shades in the bureaucratic Hades to which such worthy documents are condemned, to be referred to perhaps only by Minos, Rhadamanthus and Aeacus, the ancient judges of the underworld.

This brings me to my third, and final, point. To borrow from Tolstoy: Так что же нам делать? What then must we do?

To my observation, and I would be delighted to hear to the contrary, the process of implementing the Recommended Standards is stalling, if not already stalled. I suggest there are three reasons for this.

First, it has always been understood that the Recommended Standards has to deal with the large variety of courts and tribunals which exist in Australia. While there are basic principles and practices which should be universal, one size could and should never fit all. I readily accept, for example, that the pressures and constraints on a local court mean that some things we might take for granted in a superior court are just not practicable, even with the best will in the world. Nevertheless, I am certain that in every court and tribunal, aspiration can become achievement.

Secondly, interpreters are sole practitioners. There is a useful analogy here with the position of most solicitors and certainly barristers, many doctors and even judges.

Thirdly, and in large part due to the point I have just made, there is no one really driving the process of implementation in each court and tribunal. That is not to diminish the role of designated champions where they exist, but I do not understand their role to be prime drivers, rather than supporters, of change. There are also undoubtedly many well-disposed stakeholders and interest groups, but there is none of which I am aware that performs a central, continuous, leadership role of pressing for the implantation of the Recommended Standards by rule changes or practice notes. Nor is there such an entity which can receive complaints and concerns from interpreters about how they have been treated or where there have been departures from the Recommended Standards which will then take up the issue with the court or tribunal concerned. Looking at the very big picture, there is no entity dedicated to creating the kind of interpreting culture about which I have spoken earlier.

In my view, the ball is now very much in the court of the interpreting and translating profession to create such a body which can take control of the process in their interest. It may be a retooled AUSIT or NAATI¹⁸ or a completely new national entity. I acknowledge that, among other things, serious questions about funding would need to be addressed. However, there are precedents in other professions, including an extracurial association of judges. Whatever the practical challenges, I respectfully suggest that there is need for such an entity, whose mission will include continuing to press for and build a culture in our courts and tribunals which ensures that adherence to the Recommended Standards becomes an integral and unremarkable part of the administration of justice in Australia.