Working with Interpreters (GPN-INTERP)

Annexure B: FCA Standards

• Definitions
• Standards for the Court
• Standards for judicial officers
• Standards for interpreters
• Standards for legal practitioners
  
  

Definitions

In these Standards: 

 

"Annexure 4" means Annexure 4 to the Recommended National Standards (2^nd ed) published in 2022 by the Judicial Council on Cultural Diversity;[5] 

"AUSIT" means Australian Institute of Interpreters and Translators, the national association for the translating and interpreting profession; 

"ASLIA" means Australian Sign Language Interpreters' Association, the national peak organisation representing the needs and interests of Auslan/English interpreters and Deaf Interpreters in Australia; 

"Certified Interpreter" means a person who is currently certified by NAATI as a Certified Interpreter (previously called "Professional Interpreter"); 

"Certified Mentor" means a Certified Interpreter in another language who is a member of AUSIT, ASLIA or other recognised national, State or Territory based association requiring adherence to a code of ethics and/or standards, and is experienced in court interpreting; 

"Certified Provisional Interpreter" means a person certified by NAATI as a Certified Provisional Interpreter (previously called "Paraprofessional Interpreter"); 

"Certified Specialist Interpreter" means a person certified by NAATI as a Certified Specialist Interpreter in the legal or health domain; 

"Certified Specialist Legal Interpreter" means a person certified by NAATI as a Certified Specialist Legal Interpreter; 

"Certified Translator" means a person certified by NAATI as a Certified Translator; 

"Court" means the Federal Court of Australia; 

"Code of Conduct" means the Code of Conduct for Interpreters in Legal Proceedings set out in Annexure A to the Working with Interpreters Practice Note; 

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

"judicial officer" means a Judge or Registrar as defined in the Federal Court of Australia Act 1976 (Cth); 

"language" includes Auslan and other signed languages; 

"NAATI" means the National Accreditation Authority for Translators and Interpreters, the body responsible for setting and monitoring the standards for the translating and interpreting profession in Australia through its certification system; 

"party" includes an accused in criminal proceedings and may include a person with a significant interest in the proceedings; 

"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; and   
- certification from NAATI; and   
- 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 Practising Interpreter" means a person holding the NAATI award of Recognised Practising Interpreter, which requires the person to demonstrate English proficiency, ethical competency, intercultural competency and complete a minimum amount of introductory interpreter training, but there is no testing of the person (previously called "Recognised Person"); 

"relay interpreting" means the process whereby one interpreter interprets from language A to language B, and another interpreter interprets from language B to language C.[6]  

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

"Suitable Person" means an interpreter who has some of the attributes of a Qualified Interpreter, or where no interpreter can be found, a bilingual; 

"team interpreting" means the process whereby two or more interpreters are engaged to work together as a team to improve accuracy and fidelity. For example, team interpreting will be necessary when a Certified Interpreter cannot be sourced and a qualified interpreter in another language is appointed as a mentor to support an interpreter or bilingual of lesser competence.[7] 

"tandem interpreting" means interpreters working in rotation at agreed intervals in order to avoid fatigue over extended periods of time.[8] 

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

Standards for the Court

(As adopted and modified by the Federal Court of Australia)

Standard 1 — Model Rules

1.1 [Not adopted by the Court at this stage.]

Standard 2 — Proceedings generally to be conducted in English

2.1 Proceedings in the Court are generally to be conducted in English.

Standard 3 — Engagement of interpreters to ensure procedural fairness

3.1 The Court must accommodate the language needs of parties and witnesses with limited English proficiency in accordance with the requirements of procedural fairness.

Standard 4 — Provision of information to the public about the availability of interpreters

4.1 Basic information about interpreters in the legal system, in languages commonly used by court users, should be readily available on the Court's website and in hard copy from the Court's registries. This information should include the contact details of organisations through which interpreters may be engaged and the special status of an interpreter in the administration of justice by the Court.

4.2 Information about the circumstances in which the Court may provide an interpreter should be published on the Court's website and be available in hard copy from the Court's registries.

4.3 If the Court is responsible for the engagement of an interpreter in some or all kinds of matters, an application form for the provision of an interpreter in languages commonly spoken by court users should be readily available online and in hard copy from the Court's registries.[9] The form should make provision for a person to request that particular cultural or other considerations are taken into account in selecting an interpreter.

Standard 5 — Training of Judicial Officers and Court Staff

5.1 Judicial officers and court staff should be familiar with the special status of interpreters in the administration of justice by the Court.

5.2 Training should be provided for judicial officers on assessing the need for interpreters and working with interpreters in accordance with these Standards and the Working with Interpreters Practice Note.

5.3 Training should be provided for court staff on assessing the need for interpreters and working with interpreters in accordance with these Standards.

Standard 6 — engaging an interpreter in accordance with these Standards

6.1 Where an interpreter is engaged by the Court, the Court should endeavour to ensure that the interpreter is selected in accordance with Standard 11 of these Standards.

6.2 In the selection of an interpreter, the Court should ensure the interpreter is appropriate, taking into account any cultural and other reasonable concerns relevant to the proceedings.

Standard 7 — Court budget for interpreters

7.1 If the Court is responsible for the engagement of interpreters either directly or through an interpreting service, court budget allocations should provide and support interpreting services to court users with limited English proficiency in accordance with these Standards and the Working with Interpreters Practice Note.

Standard 8 — Coordinating the engagement of interpreters

8.1 This standard applies where the Court is responsible for the engagement of the interpreter either directly or through an interpreting service.

8.2 A specific member(s) of registry staff should be designated as having responsibility for coordinating interpreting arrangements.

8.3 The Court should implement a booking system for interpreters to ensure that interpreting services are used efficiently and with appropriate consideration to providing interpreters with as much notice as possible in relation to the assignment of work.

8.4 To maximise the ability of interpreting services to provide an appropriate interpreter for a particular case, in seeking to engage the services of the interpreter, the Court should give as much notice as possible.

8.5 Where Auslan interpreters are engaged to work with a deaf party or witness, they should work in tandem with two (or more) interpreters, given the simultaneous mode of their work and risk of occupational injury.

Standard 9 — Support for interpreters

9.1 The Court should provide adequate and appropriate working conditions and remuneration to support interpreters in the performance of their duties to the best of their ability.

9.2 Interpreters should be remunerated by reference to a scale of fees which reflect their level of qualifications and NAATI certification, skill and experience. Interpreters should also be remunerated for preparation time, travelling time, travel and accommodation costs where relevant, and for the time contracted — regardless of whether the matter finishes earlier.[10]

9.3 In order to provide practical support for interpreters and protect their independence, the Court should provide interpreters with a dedicated space where they can wait until called, leave their belongings, prepare materials, and be briefed and debriefed. The space should be close to courtrooms, and be equipped with wireless internet and/or a computer with internet access for interpreters to use online resources, such as dictionaries and terminology banks, to prepare for their cases.

9.4 In the courtroom, the Court should provide interpreters with a dedicated location where they can see all the parties in the Court. Where a working station or booth is not feasible, interpreters should be provided with a chair and table and sufficient room to work, together with any necessary equipment such as, for example, headphones.[11]  

9.5 Interpreters should be provided with regular breaks during proceedings.

9.6 Where the Court is responsible for the engagement of interpreters directly or through an interpreting service, the Court shall provide counselling and debriefing for any distress or trauma suffered by the interpreters arising from the performance of their duties to the Court in the role of an interpreter, unless such counselling and debriefing is already provided by the interpreting service provider.

9.7 Where the Court is responsible for the engagement of interpreters directly or through an interpreting service, the Court should implement procedures for the provision of feedback to and from interpreters on interpreting performance and associated matters, either coordinated through the interpreter service or through the Court.

9.8 The Court should advise NAATI when it has been unable to secure the services of an interpreter.

9.9 The Court's procedures should be adapted to ensure that the most efficient use is made of the interpreter's time and skills. As outlined in paragraph 18.1 of the Working with Interpreters Practice Note, the Court may at any time make orders and directions regarding a range of issues concerning the retainer and role of the interpreter in proceedings.

Standard 10 — Assessing the need for an interpreter

10.1 In determining whether a person requires an interpreter, the Court should apply the four-part test for determining the need for an interpreter as outlined in Annexure 4.

Standard 11 — Engaging an interpreter

11.1 This Standard applies where the Court is responsible for the engagement of the interpreter either directly or through an interpreting service, or required to determine whether or not a particular individual should be permitted to carry out the office of interpreter.

11.2 The Court should prefer to engage a Qualified Interpreter. Where a Qualified Interpreter cannot reasonably be obtained, a Suitable Person may be engaged instead. Where possible, the following order of preference for an interpreter's level of certification and qualification should be followed:

1. Certified Specialist Legal Interpreter
2. Certified Interpreter
3. Certified Provisional Interpreter
4. Recognised Practising Interpreter
5. Suitable Person

11.3 When engaging an interpreter, whether a Qualified Interpreter or otherwise, the Court should also take into account:

(a) the extent and level to which the person has pursued formal education and interpreter training, especially legal interpreting training;

(b) the level of their NAATI certification;

(c) whether or not the person is a current member of AUSIT, ASLIA or other recognised national, State or Territory based association requiring adherence to a code of ethics and/or standards; and

(d) any experience interpreting in court, including the nature of that work.

11.4 For languages in Tier A[12], a Certified Interpreter, or Certified Specialist Interpreter if available, should be engaged, subject to cultural and other reasonable concerns.

11.5 For all other tiers, if a Certified Specialist Legal Interpreter or Certified Interpreter is not reasonably available, then, subject to cultural and other reasonable concerns:

(a) For languages in Tier B[13]: 

• a Certified Provisional Interpreter should be engaged if one is available; or
 
• if a Certified Provisional Interpreter is not reasonably available, the judicial officer may grant leave for a Suitable Person to carry out the office of interpreter in accordance with paragraph 14.4 of the Working with Interpreters Practice Note. 

(b) For languages in Tier C[14]: 

• a Certified Provisional Interpreter should be engaged if one is available; or
 
• if a Certified Provisional Interpreter is not reasonably available, the judicial officer may grant leave for a Suitable Person to carry out the office of interpreter in accordance with paragraph 14.4 of the Working with Interpreters Practice Note. 

(c) For languages in Tier D[15]: 

• a Certified Provisional Interpreter should be engaged if one is available; or
 
• if a Certified Provisional Interpreter is not reasonably available, a Recognised Practising Interpreter should be engaged if there is one available; or
 
• if neither a Certified Provisional Interpreter nor a Recognised Practising Interpreter is reasonably available, the judicial officer may grant leave for a Suitable Person to carry out the office of interpreter in accordance with paragraph 14.4 of the Working with Interpreters Practice Note. 

Standard 12 — Provision of professional development to interpreters on the FCA Standards

12.1 Where the Court is responsible for the engagement of interpreters, either directly or through an interpreting service, interpreters should be provided with induction and continuing training, either by the Court or by the interpreting service, to ensure that interpreters understand their special status in the administration of justice and responsibilities under the Code of Conduct.[16]

Note: The following Optimal Standards are aspirational or long-term strategies or objectives to be implemented as and when resources become available

Optimal Standard 1 — Simultaneous interpreting equipment

1.1 To improve the efficiency and quality of interpreting, satisfy the requirements of procedural fairness and improve the working conditions of interpreters, the Court should review its equipment for interpreters and consider introducing simultaneous interpreting equipment to allow interpreters to interpret simultaneously from a distance, without the need to sit next to the party or witness.

Optimal Standard 2 — Provision of tandem interpreting or team interpreting

1.2 Whenever possible, the Court should utilise tandem interpreting. Particularly in the case of Tier C and Tier D languages when a Suitable Person may be difficult to locate and engage, the Court should utilise team interpreting.

Optimal Standard 3 — Provision of certified mentors

1.3 In cases where it has been necessary to engage a Suitable Person for a Tier C or Tier D language, the Court (where the Court is responsible for providing the interpreter) or the party engaging the interpreter should endeavour to provide a Certified Mentor in another language for the person undertaking the office of interpreter. The role of the Certified Mentor is to assist the person undertaking the office of interpreter with ethical issues, to assist with the interaction of that person with others in the Court, including where clarification or explanations may be required.

Optimal Standard 4 — Establishment of an interpreters' portal

1.4 The Court should consider setting up an interpreters' portal to upload booking and briefing materials, and where both interpreters and legal personnel can provide feedback after each assignment.

Standards for judicial officers

(Adopted by the Federal Court of Australia)

Standard 13 — Judicial Officers' duties

13.1 All judicial officers should apply the Working with Interpreters Practice Note [GPN‑INTERP] and endeavour to give effect to the FCA Standards.

Standard 14 — Plain English

14.1 Judicial officers should use their best endeavours to use plain English to communicate clearly and articulately during court proceedings.[17]

Standard 15 — Training of judicial officers for working with interpreters

15.1 Judicial officers should undertake training on assessing the need for interpreters and working with interpreters in accordance with these Standards and the Working with Interpreters Practice Note [GPN‑INTERP].[18]

Standard 16 — Assessing the need for an interpreter

16.1 The fundamental duty of the judicial officer is to ensure that proceedings are conducted fairly and in accordance with the applicable principles of procedural fairness, including by ensuring an interpreter is available to persons of limited English proficiency.

16.2 To ensure that criminal proceedings are conducted fairly and that there is no miscarriage of justice, the Court should ensure that an interpreter is provided to an accused of limited English proficiency.

16.3 Judicial officers should satisfy themselves as to whether a party or witness requires an interpreter in accordance with the four-part test for determining the need for an interpreter as outlined in Annexure 4.

Standard 17 — Proceedings with an interpreter

17.1 Judicial officers should ensure that the interpreter has been provided with appropriate working conditions, as outlined in Standard 9.

17.2 In making directions as to the conduct of proceedings, judicial officers should consider whether and to what extent interpreters should be briefed on the nature of a matter prior to the commencement of proceedings and, if so, give consideration as to the time which an interpreter may reasonably require to become familiar with the briefing material. Briefing may include the provision of materials which may otherwise have required sight translation, subject to Standard 26.

17.3 Interpreters should be afforded a reasonable time to familiarise themselves with materials that are relevant for the process of interpretation in the particular case.

17.4 Except where a Qualified Interpreter has been engaged, judicial officers should ascertain the competence of an interpreter by reference to their certification status, qualifications and court experience, as well as whether they are members of AUSIT, ASLIA or other recognised national, State or Territory based associations requiring adherence to a code of ethics and/or standards. If the judicial officer is concerned about any of these matters, they may raise this with the parties to ascertain whether another interpreter is available, and should consider adjourning the proceedings until one is available.

17.5 At the start of proceedings, and before an interpreter commences interpreting, judicial officers should introduce the interpreter and explain their special status in the administration of justice and paramount duty to the Court.

17.6 Judicial officers should confirm that the interpreter has acknowledged the Code of Conduct and understands their paramount duties to the Court.

17.7 Judicial officers should inform the interpreter to alert the Court, and if necessary to interrupt, if the interpreter:

(a) becomes aware that they may have a conflict of interest in the proceedings;
(b) cannot interpret the question or answer for any reason;
(c) did not accurately hear what was said;
(d) needs to correct an error;
(e) needs to consult a dictionary or other reference material;
(f) needs a concept or term explained;
(g) is unable to keep up with the evidence; or
(h) needs a break.

17.8 Judicial officers may become aware that an interpreter has a conflict of interest in the proceedings. In such cases, judicial officers should permit the interpreter to withdraw from the proceedings if necessary and adjourn the proceedings until another interpreter can be found, or consider another appropriate strategy to address the conflict.

17.9 Judicial officers should speak at a speed and with appropriate pauses so as to facilitate the discharge by the interpreter of their duty to interpret.

Standards for interpreters

(Adopted by the Federal Court of Australia)

Standard 18 — Special status of interpreters[19]

18.1 Interpreters have a special status in the administration of justice in the sense that they owe to the Court paramount duties of accuracy and impartiality in the office of interpreter which override any duty that the interpreter may have to any party to the proceedings, even if they are engaged directly by that party.

Standard 19 — Code of conduct for interpreters

19.1 Interpreters must ensure that they are familiar with, and comply with, the Code of Conduct.

Standard 20 — Duties of interpreters

20.1 Interpreters must diligently and impartially interpret communications in connection with a court proceeding as accurately and completely as possible.

20.2 Interpreters must comply with any order or direction of the Court.

20.3 Where the interpreter becomes aware that they may have a conflict of interest, the interpreter must alert the Court to the possible conflict of interest immediately, and if necessary, withdraw from the assignment or proceed as directed by the Court.

20.4 Requests by the interpreter for repetition, clarification and explanation should be addressed to the judicial officer rather than to the questioning counsel, witness or party.

20.5 There may be occasions when the interpreter needs to correct a mistake. All corrections should be addressed to the judicial officer rather than to the questioning counsel, witness or party.

20.6 If the interpreter recognises a potential cross‑cultural misunderstanding, or comprehension or cognitive difficulties on the part of the person for whom the interpreter is interpreting, the interpreter should seek leave from the judicial officer to raise the issue.

20.7 Interpreters must keep confidential all information acquired, in any form whatsoever, in the course of their engagement or appointment in the office of interpreter (including any communication subject to client legal privilege) unless:

(a) that information is or comes into the public domain; or

(b) the beneficiary of the client legal privilege has waived that privilege.

Standards for legal practitioners

(Adopted by the Federal Court of Australia) 

Standard 21 — Assessing the need for an interpreter

21.1 To ensure that proceedings are conducted fairly and that there is no miscarriage of justice, legal practitioners should ensure an interpreter is provided to parties and witnesses of limited English proficiency.

21.2 In determining whether a person requires an interpreter, legal practitioners should apply the four-part test for determining the need for an interpreter as outlined in Annexure 4.

Standard 22 — Booking interpreters

22.1 To maximise the ability of interpreting services to provide an appropriate interpreter for a particular case, the party seeking to engage the services of the interpreter should give as much notice as possible.

22.2 When applying for a hearing date, parties or their legal advisors should draw the availability of the interpreter to the Court's attention for the judicial officer to take into account where possible.

Standard 23 — Engaging an interpreter in accordance with these Standards

23.1 Parties engaging an interpreter should select interpreters in accordance with Standard 11 of these Standards.

Standard 24 — Briefing interpreters

24.1 The legal representatives for a party are to use their best endeavours to ensure that interpreters who are engaged are familiar with, understand and are willing to adopt the Code of Conduct for Interpreters in Legal Proceedings and understand their paramount duties the Court.

24.2 The legal representatives for a party should ensure that interpreters (whether or not engaged by those legal representatives) are appropriately briefed on the nature of the case prior to the commencement of proceedings. The interpreter should be provided with all relevant materials, including those that the interpreter will need to either sight translate or interpret, subject to Standard 26.

24.3 An interpreter should be afforded a reasonable amount of time to familiarise themselves with materials that are relevant for the process of interpretation in the particular case.

Standard 25 — Plain English

25.1 Legal practitioners should use their best endeavours to use plain English to communicate clearly and coherently during court proceedings. Legal practitioners should speak at a speed and with appropriate pauses so as to facilitate the discharge by the interpreter of their duty to interpret

Standard 26 — Documents

26.1 Legal practitioners should ensure that any document in a language other than English which is to be referred to or tendered into evidence in proceedings has been translated into English or the other language by a Certified Translator, where available.

26.2 Legal practitioners should not require interpreters to sight translate during the course of a hearing without prior notice ("sight unseen") long, complex or technical documents. Sight unseen translation by interpreters of even simple or short documents should be avoided as far as possible.

[19] The Recommended National Standards refer to interpreters as being "officers of the court". The Court decided not to adopt this terminology but to refer instead to the special status that interpreters have in the administration of justice. This was to avoid any confusion that the use of that terminology might cause in any comparison to the duties that officers of the Court, such as lawyers and liquidators, have traditionally had or any sanctions which, again traditionally, can be imposed on such officers for any breach of those duties.