Address at the Launch of: Recommended National Standards on Working with Interpreters in Courts and Tribunals
Old Parliament House, Canberra
RTF version (141 kb)In 1948 the UN General Assembly adopted the Universal Declaration of Human Rights. This recognised the inherent dignity, and equal and inalienable rights, of all members of the human family as the foundation of freedom, justice and peace in the world. The right to equality before tribunals and courts, and to a fair trial in the determination of criminal charges, has since been recognised in numerous international human rights conventions, including those to which Australia is a party. These rights are "a key element of human rights protection and [serve] as a procedural means to safeguard the rule of law."[2] They must be respected by States irrespective of their customs and legal traditions, and apply to nationals and aliens alike.[3] Integral in turn to the right to a fair trial is the right of a person to the free assistance of an interpreter if they do not speak the language of the court in criminal proceedings.[4] Correlative to that right is the positive obligation upon State parties to ensure that an accused is able to understand the proceedings and to be understood - to enable, in other words, an accused to be present in a meaningful sense.
At the level of domestic law, the right to a fair trial is expressly protected in the constitutions of almost one hundred countries, by the common law in other countries such as Australia, and in other countries again, by legislation.[5] Further, language may be a barrier not only to justice in a criminal context, but equally to access to courts and tribunals in civil matters.
For those with no or limited proficiency in the language of our courts and tribunals, interpreters therefore make their participation possible, and play an essential role in ensuring that justice is done and can be seen to be done in civil and criminal matters. Yet in our increasingly culturally and linguistically diverse society, language is one of the chief barriers faced by migrants and refugees seeking to engage the court system. As a recent report on Migrant and Refugee Women's experience of the courts published in 2016 explained:
Limited English skills impact upon women's ability to engage with the legal system at every stage – dealing with police, engaging support services, completing forms and understanding paperwork, communicating with court staff, participating in court proceedings and understanding court orders. The provision of professional, appropriate and skilled interpreters is crucial if the legal system is to respond to the needs of migrant and refugee women and ensure they can fully participate in court processes.[6]
The difficulties of communication may be overlaid by other complex barriers to justice. For example, in the case of our indigenous peoples, factors such as intergenerational trauma and experiences of discrimination, racism and poverty impact on indigenous perspectives of the justice system. Cultural concerns may add further degrees of complexity.[7]
Recognising these challenges and the vital role of interpreters as facilitators of justice, the Judicial Council on Cultural Diversity ("JCCD") established a Specialist Committee to produce the Recommended National Standards as a collaborative exercise with the interpreting profession.[8] The standards also benefited from invaluable input by key stakeholders from extensive public consultations and I wish to express my sincere thanks to those stakeholders for their contribution to this project.
Ultimately the purpose of the Recommended Standards is to recommend means by which to ensure the provision of competent interpreters in our courts and tribunals so as to improve access to justice and to meet the requirements of procedural fairness imposed already by law. Importantly, in this regard it suffices to establish a denial of procedural fairness if it is shown that errors in interpretation could have affected the outcome, and not that they in fact did so.[9]
The consequences of a failure to meet the lawful standard may lead to an invalid administrative decision or a miscarriage of justice with consequential delays and economic and social costs. For example, the State may have to bear the cost of a retrial, while the accused and witnesses are put through the trauma of a rehearing. There are also broader social costs. For example, the Report on Migrant and Refugee Women's Experience of the Courts found that a negative experience at court may not only impact upon a woman's recovery from the trauma of family violence or breakdown.[10] It may have a broader impact within the community, with many of the women who had negative experiences telling other women in their community that the legal system cannot help them and will only cause more trouble.[11] Conversely, the report found that women's satisfaction with court processes in the majority of cases was linked to how accessible courts and court processes were, how they were treated, and whether they felt listened to.[12] Providing competent interpreters therefore has the capacity to build confidence in our courts and tribunals.
As this research also suggests, the impression of justice which litigants will take away with them will be affected in large part by the respect with which they are treated, how well they understand the proceedings, and how well they are understood. In each of these respects, all actors in the courtroom – the judge, the lawyers, the interpreter, and registry staff - play a vital role, as do those engaged in related pre-trial processes. As such, the Recommended Standards recommend practical measures to be undertaken from the perspective of each of these actors, including to improve an understanding of the interpreter's role, to protect the independence and impartiality of interpreters, to assess whether an interpreter is required, to ensure that competent interpreters are engaged where available, and to ameliorate the risks when they are not. Many of the recommended measures in turn can be implemented by changes in practices without additional resources and costs. It is also envisaged that the Recommended Standards can be implemented incrementally and adapted to the needs and resources of different jurisdictions.
The initiative by the JCCD envisages a continuing collaborative approach between the justice system, the interpreting profession and peak professional bodies to promote a judicial and administrative system that better affords procedural fairness to individuals from culturally and linguistically diverse backgrounds. And so this launch is just the beginning.
Finally, I cannot close without expressing my deepest thanks to the JCCD chaired so expertly and with such vision by Chief Justice Wayne Martin, the specialist working committee tasked with preparation of the Recommended Standards which I was honoured to chair, the consultants who contributed to the project, and the Migration Council, for your hard work, invaluable insights and commitment to this project. It has been an absolute pleasure to work with each of you.
[1] Federal Court of Australia: LLB (Hons) (Adel), LLM PhD (Cantab), FAAL. Justice Perry is a member of the Judicial Council on Cultural Diversity.
[2] UN Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc CCPR/C/GC/32 (2007) ("General Comment No. 32") at [2].
[3] Id at [4] and [9].
[4] Id at [40]. On the other hand, as the UNHRC has explained, "…accused persons whose mother tongue differs from the official court language are, in principle not entitled to the free assistance of an interpreter if they know the official language sufficiently to defend themselves effectively.": ibid. See also: Sherman, J, "The Right to an Interpreter under Customary International Law", (2017) 48 Columbia Human Rights Law Review 257 at 289; Article 4, Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings at [16]; and Human Rights Committee, Views: Communication No 219/1986, 39th sess, UN Doc CCPR/C/39/D/219/1986 (23 August 1990) [10.2] ('Guesdon v France').
[5] Sherman, J, "The Right to an Interpreter under Customary International Law" (2017) 48 Columbia Human Rights Law Review 257 at 262-271.
[6] Migrant and Refugee Women's Experience of the Courts, Report prepared for the Judicial Council on Cultural Diversity (2016) at p. 7.
[7] Perry and Zornada, "Working with Interpreters: Judicial Perspectives" (2015) 24 JJA 207 at 210.
[8] The recommended standards are available online at: http://jccd.org.au/publications/ (viewed 23 October 2017).
[9] SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142 [24]-[25] (Allsop CJ), with whom Robertson J agreed at [67]-[69]; applied in SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 [74],[76]-[77] (Griffiths J); see also WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 [58] (Lee, Hill and Carr JJ). See further Perry and Zornada, "Working with Interpreters: Judicial Perspectives" (2015) 24 JJA 207 at 211-212.
[10] Migrant and Refugee Women's Experience of the Courts, Report prepared for the Judicial Council on Cultural Diversity (2016) at p. 8.
[11] Id at p. 36.
[12] id at pp. 36-37.
