By Ludmila Stern
It is Monday 21 September 2020, and I am waiting in the Downing Centre District court in Sydney CBD for trials to begin. One ongoing trial involves interpreting in French. Another trial, to begin today, involves Arabic, Portuguese and Vietnamese interpreters. Two Spanish interpreters, one French and one German, have been booked for a third trial.
I didn’t come here today as a participant in these trials but to observe the way judges work in criminal proceedings when an interpreter is involved.
These court observations are part of the research project Judicial officers working with interpreters in courts and tribunals: Implications for access to Justice. This project is funded by the Australian Research Council (ARC) and is supported by eight Partner Organisations who are industry stakeholders. NAATI is our major sponsor in this project who came on board in the early stages of our application.
In this project, a team of researchers from UNSW Sydney – my colleagues and I – focus on the court environment where interpreters work, and on the role judicial officers play when the interpreter is present.
Much has been achieved in recent years to ensure a non-English speaking defendant’s right to a fair trial. Providing interpreting of high quality for court hearings is essential but is it always possible? Interpreter training courses offered by universities and TAFE only cover a fraction of the 175+ languages required by Australian courts.
NAATI’s much improved system of interpreter testing and certification, and a new specialised credential in legal interpreting, cannot capture all of these languages, even though the large number of NAATI-credentialled languages is unparalleled. Many ‘new and emerging’ communities of recent migrants and refugees, and indigenous communities, have a small pool of interpreters for each language, and there are no training opportunities.
Nonetheless, interpreters in these languages where only a lower credential is available, or no credentials at all, are called to interpret in court. These interpreters often struggle as a result of high-pressured criminal proceedings, and this is not without a risk for the quality of communication or even the outcome of the legal matter.
Lawyers and judicial officers – magistrates, judges and tribunal members – are aware of the growing presence of interpreters in court, and many, such as newly appointed judges, receive training on how to work with interpreters. Policies, guidelines and bench books that we have examined at the early stages of our study provide guidance to judicial officers on how to work with interpreters and communicate effectively.
The most detailed and well-informed guidelines, the Recommended National Standards for Working with interpreters in courts and tribunals, was published in 2017 by the Judicial Council for Cultural Diversity, with NAATI as a central participant and stakeholder. These Standards provide guidelines for all the participants – judicial officers, lawyers, interpreters – on how to work together.
However, one may ask whether judges and magistrates indeed adapt their modus operandi when an interpreter is present. It is not yet clear to what degree the standards listed and described in the RNS are being adhered to by courts.
This brings us back to our research project. The focus of my observation today is to find out whether the judges apply these ‘good practice’ strategies when working with interpreters, just as the judges in international courts have been doing since the post-WWII Nuremberg Trials.
Or whether today’s judicial officers simply ‘slot’ the interpreters in and conduct the proceedings as if they were monolingual. Our research team’s observations have been delayed by COVID-19, and while we were able to observe some Local Court proceedings in recent weeks, we were only granted access to the District Court now. Early stage observations have confirmed what is known anecdotally: that judicial officers indeed work differently in interpreted proceedings, which we are yet to examine closely.
What has emerged as an aside observation was that much of what the interpreters struggle with has to do with the way court administration operates. Despite the general recognition of the importance of the interpreters’ role, interpreters are still denied the most basic professional conditions: for example, they still don’t receive any briefing about the case, and are often met with hostility when they ask to be given basic information about the case.
They still don’t have a dedicated work space in court (or even any seat in some of the hearings we observed), and nobody in these days of COVID-19 seems concerned about the interpreter sitting in the dock in close proximity to the accused, providing simultaneous whispered interpretation.
At these early stages of our observations we saw some judicial officers being supportive of interpreters’ needs. Some magistrates enquired about the interpreter’s seating preference, invited them to ask for a break when needed, and responded sympathetically when asked to provide a written document that was being read out by a witness.
Others barely acknowledged the presence of the interpreter, not greeting them or offering them to sit down. Interpreters become particularly ‘invisible’ to the court when they interpret in a whispered simultaneous mode (chuchotage) in the dock because their interpretation is addressed to the defendant and not the court.
Allowing the lawyers to speak fast and interrupt the interpreter, not booking a second interpreter for lengthy trials with weeks of chuchotage in the dock, refusing to give the interpreter a document to keep up with witness statements – these are among the most common factors that cause the interpreter to become fatigued, and could result in omissions and misinterpretations.
These are some of the areas where a judicial officer could make a positive difference to the quality of interpretation, especially when a novice interpreter or an interpreter with low level NAATI credentials or no credentials is involved. These and other useful strategies that I observed in international courts at the earlier stage of the project include courts briefing interpreters about the case and supplying them with documents before and throughout the trial; judges encouraging interpreters to pause and ask for repetitions, clarifications and breaks; judges requesting the counsel to slow down; judges engaging with interpreters to clarify misunderstandings and pre-empt errors.
Strategies like these would create a supportive and professional environment for interpreters, improve the quality of interpreted communication, and make non-English speaking defendants, accused and witnesses in Australian courts and tribunals truly ‘linguistically present’ to ensure that their language rights are observed. This, in turn, would have a long-term benefit of restoring their confidence in the legal system that respects their language right as part of the right to a fair trial.
This article was written by Professor Ludmila Stern, Lead Investigator of the UNSW Research team, which includes Professor Sandra Hale, Chief Investigator; Associate Professor Stephen Doherty, Chief Investigator (School of Humanities and Languages); Ms Melanie Schwarz, Chief Investigator (Law); Dr Julie Lim, Research Associate.
Stern L, 2020, ‘Interpreting the ‘Language of War’ in war-crimes trials’, in Laugesen A; Gehrmann R (ed.), Communication, Interpreting and Language in Wartime Historical and Contemporary Perspectives, Palgrave Macmillan (Springer Nature), pp. 171 – 206
Stern L, 2018, ‘Legal interpreting in domestic and international courts: Responsiveness in action’, in The Routledge Handbook of Language and Superdiversity, Routledge, pp. 396 – 410, http://dx.doi.org/10.4324/9781315696010
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Stern L, 2015, ‘Community interpreting in the age of super-diversity: where to from here?’, Australian Mosaic, vol. Special issue, pp. 40 – 42, http://us11.forward-to-friend2.com/forward/show?u=8d24106d5d144a80e9720142c&id=abc646271c
Stern L; Ozolins U; Hale SB, 2015, ‘Inefficiencies of court administration despite participants’ goodwill’, Journal of Judicial Administration, vol. 25, pp. 76 – 95, http://sites.thomsonreuters.com.au/journals/category/journal-of-judicial-administration/
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Stern L, 2012, ‘What Can Domestic Courts Learn from International Courts and Tribunals about Good Practice in Interpreting?: From the Australian War Crimes Prosecutions to the International Criminal Court’, T & I Review, vol. 2, pp. 7 – 30, http://home.ewha.ac.kr/~ecit/eng/
Hale S; Stern L, 2011, ‘Interpreter quality and working conditions: comparing Australian and international courts of justice’, Judicial Officers’ Bulletin, vol. 23, pp. 75 – 78, http://search.informit.com.au/documentSummary;dn=473459095094748;res=IELHSS
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Hale S, 2015, ‘Approaching the Bench: Teaching Magistrates and Judges how to work Effectively with Interpreters’, MonTI. Monografías de Traducción e Interpretación, vol. 7, pp. 163 – 180, http://dx.doi.org/10.6035/MonTI.2015.7.6
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