Working with Interpreters (GPN-INTERP)

General Practice Note

1. Commencement

1.1 This Practice Note commences on 24 March 2023.

2. Application

2.1 This Practice Note applies to all civil and criminal proceedings commenced after its commencement and to any existing proceedings which the Court directs should be subject to this Practice Note in whole or in part.

3. Definitions

3.1 In this Practice Note: 

"accurately" means resulting in the optimal and complete transfer of the meaning from the other language into English and from English into the other language, preserving the content and intent of the communication made in the other language or in English (as the case may be) without omission or distortion and including matters which the interpreter may consider inappropriate or offensive. 

"Certified Interpreter" means a person who is currently certified by the National Accreditation Authority for Translators and Interpreters (NAATI) as a Certified Interpreter (previously called "Professional Interpreter").

 "Code of Conduct" means the Code of Conduct for Interpreters in Legal Proceedings set out in Annexure A.

"consecutive mode" means the mode of consecutive interpreting whereby the interpreter interprets after each short segment.

"interpret" means the process whereby spoken or signed language is conveyed from one language (the source language) to another (the target language) orally.

"interpreter", in relation to any other language (as defined below), means a qualified interpreter, a Certified Interpreter, an interpreter who is registered or recognised as an interpreter for that language by a Recognised Agency, or a person who otherwise satisfies the Court that they are qualified to carry out the office of interpreter.

"other language" means a spoken or signed language other than English.

"qualified interpreter" means a person qualified for court interpreting because they have all of the following attributes:   

• a tertiary (VET or university) qualification in interpreting;
• certification from NAATI;
• membership with a professional body (e.g. AUSIT, ASLIA or other recognised national, State or Territory based interpreter association); and
• experience interpreting in court. 

"Recognised Agency" means the NAATI and such other organisations as are approved by the Chief Justice for the purposes of this Practice Note. 

"Recommended National Standards" means the Recommended National Standards for Working with Interpreters in Courts and Tribunals (2^nd ed, 2022)[1], a copy of which may be found on the Court's website. 

"FCA Standards" means the modified rules based on the Judicial Council on Cultural Diversity (JCCD) (now the Judicial Council on Diversity and Inclusion), Recommended National Standards for Working with Interpreters in Courts and Tribunals (2^nd ed, 2022) , which have been agreed to be implemented and applied in the Court and are set out in Annexure B. 

"sight translate" means the process whereby an interpreter or translator presents a spoken interpretation of a written text. 

"simultaneous mode" means the mode of simultaneous interpreting whereby the interpreter listens to the spoken language, or watches the signed language, and interprets at the same time with only a small lag between the message in the source language and the interpretation in the target language. 

"translate" means the process whereby written language is conveyed from one language (the source language) to another (the target language) in the written form. 

4. Purpose

4.1 The main purposes of this Practice Note are:

1) to implement in the Court the second edition of the Recommended National Standards for Working with Interpreters in Courts and Tribunals published in 2022 by the Judicial Council on Cultural Diversity, with minor modifications as set out in Annexure B to this Practice Note;

2) to clarify that the Court has control over the giving of evidence that is interpreted or translated into English;

3) 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; and

4) to provide some procedural guidance on the operation of the FCA Standards in the Court (which are for the Court, judicial officers, interpreters, and legal practitioners).

4.2 The adoption of these modified standards and the provision of procedural guidance in the form of the FCA Standards is through this Practice Note, issued by the Chief Justice, rather than by amendment to the rules of the Court and the issue of a less comprehensive practice note as was recommended by the Judicial Council on Cultural Diversity.

4.3 This approach will enable the Court to monitor the effects of the implementation of the Recommended National Standards in practice and, from that experience, make an informed decision at an appropriate time in respect of whether and, if so, how best to adopt the Recommended National Standards and the associated model rules contained therein into the body of the Court's rules. 

5. Construction and application of this Practice Note

5.1 This Practice Note and its annexures should be read together.

5.2 The Court will take into account and, unless the Court considers it for any reason impractical or undesirable in the circumstances of the particular case, give effect to the FCA Standards when the Court is construing and applying this Practice Note. 

6. Assessing the need for an interpreter

6.1 In considering whether a person requires an interpreter and in engaging an interpreter, parties must take into account the matters set out at Standards 21, 22 and 24 of the FCA Standards and comply with the tiered approach to engaging an interpreter required by Standard 23 (which picks up Standard 11).

7. Code of conduct must be provided to an interpreter on engagement

7.1 Subject to paragraph 7.2, when a party or an accused engages an interpreter in anticipation of, or in connection with, proceedings commenced or to be commenced in the Court, that party or accused must provide a copy of the Code of Conduct to the interpreter as soon as possible upon engaging the interpreter. The party or accused must not proceed with the engagement of the interpreter until that party or accused has obtained from the interpreter a signed acknowledgement that the interpreter has read, understands and will abide by the Code of Conduct.

7.2 Paragraph 7.1 of this Practice Note does not apply to an interpreter in respect of whom the party or accused intends to make an application under paragraph 14.4 of this Practice Note, or if the interpreter is to be used only by a party or accused for purposes other than communicating with the Court (see paragraph 13.4). 

8. Matters to be considered when an interpreter is engaged

8.1 When engaging an interpreter, a party or accused must give early consideration to:

8.1.1 the matters set out in paragraph 18.1 of this Practice Note; and

8.1.2 whether any orders or directions should be sought from the Court having regard to those matters or otherwise in connection with the participation of an interpreter in the proceedings. Such directions must be sought at the earliest possible stage in the proceedings.

8.2 For the purposes of providing any time estimate to the Court where evidence is to be given through an interpreter using the consecutive mode, a party or an accused should generally allow 2.5 hours for every hour that would have been estimated if the evidence was being given in English without an interpreter. The use of the simultaneous mode can significantly expedite the proceedings.[2]

8.3 A party or an accused engaging an interpreter to interpret in proceedings in Court must inform the interpreter that they will be required by the Court to produce evidence of their current certification as an interpreter for the relevant language by a Recognised Agency, status as a Suitable Person (as defined in the Recommended National Standards) for the relevant language, or other evidence to satisfy the Court that they are qualified to carry out the office of interpreter.[3]

9. Conduct of proceedings

9.1 In addition to compliance with the other provisions of this Practice Note, each party or accused must, to the extent it is reasonably practicable, conduct proceedings in accordance with, and so as to give effect to, the FCA Standards in this Practice Note.

9.2 Interpreting "accurately" for the purposes of this Practice Note and the Code of Conduct involves skilled and sophisticated judgments on the part of the interpreter. An accurate interpretation does not equate to a literal or "word for word" translation. The Court recognises that, in general, the obligation to interpret accurately is not intended to compel, and will not necessarily be satisfied by, literal or "word for word" interpretation.

10. Fees for interpreters

10.1 The Court accepts that interpreters, in particular those who are certified by a Recognised Agency, are entitled to charge reasonable fees commensurate with their level of qualifications and certification, skill and experience. While what fees may be reasonable can vary depending on the circumstances, as a general guide the Court adopts as reasonable minima the rates published from time to time by Professionals Australia for the purpose of any taxation or assessment where an interpreter has been retained by a party or an accused.

11. Issues concerning the availability of interpreters and implementation of the Recommended National Standards

11.1 It is expected that the Recommended National Standards will be regularly reviewed. The Court encourages parties to provide comments, especially where they have encountered difficulties in obtaining qualified interpreters, about the operation of the Recommended National Standards to the National Accreditation Authority for Translators and Interpreters at info@naati.com.au.

12. Proceedings to be conducted in English

12.1 Unless the Court otherwise orders, proceedings in the Court are conducted in English.

13. When interpreters may be required

13.1 If the Court is satisfied that a witness cannot understand and speak English sufficiently to enable the witness to understand, and to make adequate reply to, questions that may be put to the witness, then the witness may give:

1) oral evidence in any other language which is interpreted into English by an interpreter in accordance with this Practice Note;

2) evidence by an affidavit or statement in English which has been sight translated to the witness by an interpreter.

Note. Section 30 of the Evidence Act 1995 (Cth) provides that 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.

13.2 The party or accused calling a witness who requires the services of an interpreter is responsible for engaging an interpreter in accordance with this Practice Note, unless that party or accused:

1) is self-represented in a proceeding under the Migration Act 1958 (Cth) and English is not their first language; or

2) is an accused person in criminal proceedings.

In either of the circumstances set out in sub-paragraphs (1) or (2) above, the Court will cause an interpreter to be engaged.

13.3 In any criminal proceedings, if the Court is satisfied that the accused cannot understand and speak English sufficiently to enable the accused:

1) to understand and participate in the proceedings; or

2) to understand, and to make adequate reply to, questions that may be put to the accused,

then the Court must ensure that the accused is provided with an interpreter.

13.4 In any civil proceedings, if the Court is satisfied that a party cannot understand and speak English sufficiently to enable the party to understand and participate in the proceedings, the Court must permit that party to engage the services of an interpreter who meets the standards and requirements imposed by this Practice Note, if the interpreter is to be engaged by that party to communicate with the Court (but for no other purpose).

14. Who may act as an interpreter

14.1 A person must not act as an interpreter in proceedings or proposed proceedings unless the person:

1) is currently a Certified Interpreter for the other language concerned or otherwise satisfies the Court that the person is qualified to act as an interpreter; and

2) has read and agreed to comply with the Code of Conduct; and

3) takes an oath or makes an affirmation to interpret accurately to the best of the person's ability.

14.2 In addition to the requirements set out in paragraph 14.1 above, a person must not act as an interpreter if the person:

1) is or may become a party to, or a witness in, the proceedings or proposed proceedings (other than as the interpreter); or

2) is related to, or has a close personal relationship with, a party or an accused, or a member of the party's or accused's family, or a witness or potential witness; or

3) has or may have a financial or other interest of any other kind in the outcome of the proceedings or proposed proceedings (other than an entitlement to a reasonable fee for the services provided by the person as an interpreter in the course of the person's engagement or appointment); or

4) is or may be unable to fulfil, for any reason, the person's duty of accuracy or impartiality under the Code of Conduct as required by paragraph 16, including, without limitation, personal or religious beliefs, or cultural or other circumstances.

14.3 A person acting as an interpreter must:

1) cease to act as an interpreter if the person becomes aware during a hearing of any of the disqualifying matters referred to in paragraph 14.2; and

2) immediately disclose the disqualifying matter or matters to the Court.

14.4 The Court may, where it is in the interests of justice to do so, grant leave for a person to act as an interpreter in proceedings despite that person not complying with one or more of the requirements under paragraphs 14.1-14.3, if (to the extent practicable):

1) the Court is satisfied that, because of the person's specialised knowledge based on the person's training, study or experience, the person is able to interpret and, if necessary, sight translate accurately to the level the Court considers satisfactory in all the circumstances from the other language into English and from English into the other language; and

2) the person takes an oath or makes an affirmation to interpret accurately to the best of the person's ability; and

3) the Court is satisfied that the person understands and accepts that, in acting as an interpreter, the person:

a) is not the agent, assistant or advocate of the witness, the party or the accused for whom the person is to act as an interpreter; and

b) owes a paramount duty to the Court to be impartial and accurate to the best of the person's ability; and

4) the Court directs that the evidence and interpretation be sound recorded for spoken languages and video recorded for sign languages; and

5) the person is over the age of 18 years.

14.5 Paragraphs 14.1-14.3 are subject to paragraph 14.4.

15. What is the function of the interpreter

15.1 An interpreter has a special status in the administration of justice in the sense that they owe to the Court a paramount duty to be impartial and accurate to the best of the person's ability.

15.2 The interpreter's duty to the Court overrides any duty the interpreter may have to a party or an accused (regardless of whether the party or accused engaged the person).

15.3 Unless the Court otherwise orders, an interpreter must:

1) interpret questions and all other spoken or signed communications in the hearing of the proceedings for the party or accused, or a witness, from English into the other language and from the other language into English; and

2) subject to paragraph 15.4, sight translate, whether before or during the course of the witness' evidence, written text shown to the witness.

15.4 An interpreter may refuse to sight translate if:

1) the interpreter considers that the interpreter is not competent to do so; or

2) the task is too onerous or difficult by reason of the length or complexity of the text.

15.5 Unless the Court otherwise orders, an interpreter may not assist a party or an accused, or the party or accused's legal representatives, in their conduct of proceedings or proposed proceedings (including a hearing) except by:

1) interpreting questions and other spoken or signed communications in connection with the proceedings or proposed proceedings from English into the other language and from the other language into English; or

2) sight translating documents in connection with the proceedings or proposed proceedings from English into the other language and from the other language into English.

16. Code of conduct for interpreters

16.1 An interpreter must comply with the Code of Conduct.

16.2 Unless the Court otherwise orders, as soon as practicable after an interpreter is engaged or appointed for proceedings or proposed proceedings, a copy of the Code of Conduct is to be provided to the interpreter by:

1) if an interpreter is engaged by a party or accused – the party or accused; or

2) if the interpreter is appointed by the Court – the Court.

16.3 Unless the Court otherwise orders, a witness may not give evidence using an interpreter unless the Court is satisfied that the interpreter has read the Code of Conduct and agreed to be bound by it.

16.4 Paragraphs 16.1 and 16.3 have effect subject to paragraphs 14.1-14.5. 

17. Evidence adduced through interpreters

17.1 Unless the Court otherwise orders, a party or accused seeking to read a translated affidavit or statement of a witness who requires an interpreter is not entitled to rely on the affidavit or statement unless it includes a certification in the approved form by a qualified interpreter for the other language concerned, or a qualified interpreter separately verifies by affidavit in the approved form, to the following effect:

1) before sight translating the affidavit or statement to the witness, the interpreter:

a) had read the Code of Conduct and agreed to be bound by it; and

b) had been given an adequate opportunity to prepare to sight translate the affidavit or statement; and

2) the interpreter sight translated the entire affidavit or statement to the witness and the witness then:

a) informed the person responsible for the preparation of the affidavit or statement through the interpreter that the witness had understood the interpreter and agreed with the entire contents of the affidavit or statement; and

b) swore or affirmed the affidavit or signed the statement in the presence of the interpreter.

17.2 Unless the Court otherwise orders, the interpreter referred to in paragraph 17.1 may, but is not required to, be the interpreter who acts as the interpreter for that witness in any hearing in the proceedings.

17.3 The Court may at any time, either of its own motion or on the application of a party or an accused, request an interpreter to correct, clarify, qualify or explain the interpreter's interpretation of the evidence or sight translation of a document.

18. Court may make orders or give directions concerning interpreters

18.1 Without limiting the Court's powers to control its own procedures, the Court may at any time make orders and directions concerning all or any of the following, having regard to the nature of the proceedings (including the type of allegations made and the characteristics of the parties and witnesses):

a) any particular attributes required or not required for an interpreter, including, without limitation, gender, age, ethnic, cultural or social background so as to accommodate any cultural or other reasonable concerns of a party, the witness or accused;

b) the number of interpreters required in any proceedings and whether relay interpreting should be used;

c) establishing the expertise of an interpreter;

d) the steps to be taken to obtain an interpreter who is certified, registered or recognised by a Recognised Agency as an interpreter for the other language concerned or is otherwise qualified to act as an interpreter;

e) the steps to be taken before an application under paragraph 14.4 is made;

f) what information concerning the proceedings (including, without limitation, pleadings, affidavits, lists of witnesses and other documents) may be provided to a person in advance of any hearing to assist that person to prepare to carry out the office of interpreter at that hearing;

g) when, in what circumstances and under what (if any) conditions the information referred to in paragraph 18.1(f) may be provided;

h) whether the interpreter is to interpret the witness's evidence in the consecutive mode, in the simultaneous mode or in some other way;[4]

i) other resources such as dictionaries or other reference works which the interpreter may require to consult in the course of carrying out the office of interpreter;

j) the length of time for which an interpreter should interpret during a hearing without a break;

k) security for the interpreter including, where necessary, arrangements to preserve the anonymity of the interpreter;

l) practical matters concerning the interpreter, such as seating for, and the location of, the interpreter;

m) the disqualification, removal or withdrawal of an interpreter, including on the application of the interpreter, any party to the proceedings or by the Court of its own motion; and

n) the payment of interpreters.

18.2 In making any order or direction in relation to interpreters, the Court will also have regard to the Central Practice Note (CPN-1), the National Practice Area and Sub‑area Practice Notes, the General Practice Notes and the Appeal Practice Notes.

19. Application of Evidence Act

19.1 This Practice Note applies subject to the provisions of the Evidence Act 1995 (Cth).
 

J L B ALLSOP
Chief Justice
24 March 2023

Annexures