Gentile, Adolfo --- "Interpreting fairness" [2019] PrecedentAULA 11; (2019) 150 Precedent 43

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INTERPRETING FAIRNESS

By Dr Adolfo Gentile

Language is the main tool used in the legal area and by the professions within it. It is the vehicle through which evidence is gathered and examined; it is the vehicle through which instructions are given, arguments are constructed and decisions and judgments are written and delivered. It is the tool par excellence of the legal community.

When the lawyer, decision maker or judge is required to abdicate the direct use of that language to the interpreter in order to conduct her/his activity, a number of factors come into play that have been discussed through case law. The issues involved in working through an interpreter have been considered in a context where precedent is paramount and the yardstick used is the requirements of the legal framework.

Many unanswered questions remain even after considering interpreting solely in this context. This article examines some of these unanswered questions through the lens of the concept of ‘fairness’ as it operates in the legal sphere.

Groves^[1] in his treatment of this topic, albeit only in the context of particular administrative hearings, poses the question as to whether ‘there can or should be any substantive difference in rules governing interpreters in hearings regulated by the common law or the statutory procedural requirements of migration hearings when the purpose of interpreters remains constant’ (545). Before one even gets to the rules, if indeed they can actually be called ‘rules which regulate interpreters’, it is important to consider the elements that fall outside the constant and evolving discussion through case law. These elements do not necessarily reside in the law but have a fundamental influence on the way interpreters are perceived and the nature of what is expected from interpreters.

THE NATURE OF INTERPRETING/TRANSLATING

Views about the nature of interpreting and translating in Australia are informed by the social and linguistic context. The interpreter/translator (interpreter) is generally a bilingual person who, by virtue of that bilingualism, is able to interpret or translate. The question of the level of bilingualism, let alone the question of training and certification as an interpreter, does not generally form part of this perception. Furthermore, the interpreter in Australia belongs, ethnically speaking, to the group which speaks a language other than English (LOTE) and as such is subject to the generalised assumptions made about the particular ethnic group in society at large.

THE PROVISION OF LANGUAGE SERVICES

As a consequence of the sustained migration program begun in Australia soon after World War II, language services in the form of interpreting and translating services, LOTE teaching in schools and foreign-language broadcasting, for example, were developed; some are services for the settlement of migrants and others arose from the policy of multiculturalism which came into its own in the mid-1970s. One of the consequences of these policies is that interpreting has been understood as belonging to the class of services which one could call ‘social welfare’ and thus regarded only as a service to the non-English speaker, whereas the interpreter has two clients, each of whom would not be able to communicate with the other were it not for the interpreter (see Ozolins 1993^[2] and 2010,^[3] among others). The latter attitude has given rise to a number of difficulties in the delivery of interpreting services, some of which are illustrated later.

ASSUMPTIONS ABOUT WHAT INTERPRETING INVOLVES

The general view is that interpreters engage in an exercise of substituting words in one language with words in the other language (see, for example, Hale^[4]). Happily, this manner of construing the interpreter’s work has been well and truly superseded in the legal area in terms of case law, as the ends of the spectrum, exemplified by Gaio^[5] and Perera,^[6] show. However, the fact that this is still a generally held view leaves open arguments as to whether interpreters used this particular word or that particular word; these are matters which have given rise to many appeals and which have been relevant to the consideration of whether the so-called interpreting errors impact negatively on the principle of fairness.

The product of an interpreter’s work ideally, as Kenny J in Perera at [24] suggested, should place the parties in ‘as nearly as possible’ the same position as if the interaction were being conducted in a shared language. However, this is an ideal seldom, if ever, achieved in absolute terms, given the culture-bound nature of language and the variability in the competence of interpreters available. Indeed, in monolingual exchanges, any utterance in English directed to English speakers is not guaranteed to be perceived in the same manner by each of the listeners, nor are perceptions of the intent of the utterance consistent.

The act of interpreting is an operation on the original message which consists not only of a string of words but also, among others, cognitive content, intonation, pauses and facial expressions. The understanding of the message on the part of the interpreter is dependent on their knowledge of the subject matter being discussed, its cultural context and the protocols pertaining to the particular domain as well as bilingual competence. Research and academic debate have been going on for centuries about whether the operations of interpreting and translation are even possible. At the same time these activities have been carried out for millennia with an implicit concession that optimal performance is the standard, not perfection. Justice Kenny in Perera argues this point specifically.

This, however, does not invite an approach which makes optimal performance code for any performance. The issue of fairness, in my view, necessitates a broader approach which does not begin and end with the actual proceedings and their record and needs to include the interpreter.

The examination of fairness, discussed also as procedural fairness or natural justice, relates to different aspects of introducing an interpreter into the legal process. These can be viewed to encompass questions of the right to an interpreter; of the procurement and assessment of the suitability of an interpreter for a particular task; and of the competence of the interpreting performance and its assessment during proceedings and on appeal. A consideration of each of these follows.

THE RIGHT TO AN INTERPRETER

As I have indicated elsewhere,^[7] the instances of the right to an interpreter being enshrined in law are few. International instruments such as the Universal Declaration of Human Rights (Article 2), the International Covenant on Civil and Political Rights (Article 14) and what might be called derivative legislation from these two instruments do enshrine that right, but specifically for criminal proceedings.^[8] The intersection between a right and fairness in relation to the introduction of an interpreter in proceedings is the principle of the right to a ‘fair trial’, however expressed. A person cannot be said to have had a fair trial if they are unable to provide evidence because of their inability to speak the language of the court. They cannot be said to have had ‘notice’ and be able to ‘respond’ (see Groves at 519 et passim). The Migration Act 1958 (Cth), ss420, 422B, 423A and 427 each contain a statement requiring that the Tribunal (AAT Migration and Refugee Division) must act in a manner that is fair and just. This illustrates how statutory provisions on fairness affect the work of an interpreter in proceedings.

These issues, as they were covered in Groves,^[9] have been taken up and expanded into a framework of recommended standards for working with interpreters in courts and tribunals by the Judicial Council on Cultural Diversity (JCCD).^[10] In the absence of a right to an interpreter at law, the statutory provisions and common law precedents dealing with procedural fairness and natural justice allow for the engagement of an interpreter where it is deemed that the right to appear and give evidence could not be exercised were this not done.

ASSESSMENT OF THE SUITABILITY OF THE INTERPRETER

Once a decision has been made to engage an interpreter, the matter of selecting an appropriate interpreter is, in my view, the most significant in terms of its impact on fairness and the most difficult, given the supply and demand of adequately qualified interpreters in Australia and the misconceptions about the nature of interpreting outlined above. This task is also further complicated by the fact that the selection is often carried out in two steps: before the interpreter is engaged through an administrative process and once the interpreter is in the courtroom by a judicial officer. The suitability of the interpreter is dependent on their qualifications and experience, which encompasses the certification by the National Accreditation Authority for Translators and Interpreters (NAATI), the training undergone, the direct experience in the legal sphere and possible specialisation. It should be noted that from 1 January 2018 NAATI, has moved to a system of certification^[11] which is more consistent with the practices adopted by other professional groups.

In current practice there is often little attention paid to the checking of the interpreter’s level of accreditation (now certification), or to their degree of experience in the legal domain. This lack of checking extends to interpreters who are called upon to review and comment upon the work of their peers when the quality of interpreting is challenged on appeal. There is a tendency simply to accept the review’s assessment without a reported examination of the competence of the reviewer. The interpreter is seldom briefed on the assignment or given the opportunity to prepare for it. These factors, coupled with the problems of the supply of appropriately qualified interpreters, considered below, directly affect the ultimate fairness of the legal process. With the endorsement of the JCCD standards, better focused and more uniform engagement and checking procedures, as well as the institution of routine briefing of the interpreters, will produce better results for all parties.

INTERPRETER COMPETENCE

The question of interpreter performance, closely related to interpreter supply, is a more difficult issue and one that demands even closer co-operation between the legal community and relevant organisations in the interpreting industry. Since the initial attempts at setting up interpreting services in the 70s, the issue of need versus demand has proved to be a real obstacle to the planning and delivery of these services. In brief, the expressions of need have rarely coincided with demand because of a series of factors including the lack of availability of data on unmet demand and the indispensable requirement that the need must be expressed in terms of the languages required, thus creating sub-sets of need that are difficult to quantify. The constantly changing need/demand by language, due to changes in migrant flows and migration (including humanitarian migration) policies, affects not only the availability of interpreters but also the availability of training for them. To these must be added the usual issues of service delivery to regional and rural areas, including specifically in Indigenous languages.

NAATI is able to test in some 60 non-Indigenous languages (including Auslan) and some 17 Indigenous languages, but it cannot test in that number every year. Furthermore, in some languages of high demand of recently arrived groups there are often difficulties in setting up testing panels because of the lack of available expertise. Training institutions face analogous difficulties for the training of interpreters in these languages. The JCCD national standards are breaking new ground in this area and suggest a classification of languages in four tiers which relate to the number of interpreters who are NAATI certified at the various skill levels in a system which encourages the engagement of the optimal available interpreter for that particular language in a specific situation (see the JCCD standards at 40-52).

The requirements of the legal domain in terms of interpreters have, for many years, led to the call for ‘court’ interpreters or ‘legal’ interpreters to be specialists. For about a decade in the 80s and 90s Victoria did have a ‘legal interpreter service’ provided by the Victorian government. In some parts of the world, legal interpreters constitute a branch of the profession. The new NAATI certification system has a ‘specialist’ certification for legal interpreters (and for health interpreters) which corresponds to a level of senior practitioner requiring specialist training and experience before certification (see naati.com.au); in the not-too-distant future, the legal area should begin to see these interpreters at work.

SUMMARY

Notwithstanding the fact that Australia is at the forefront of global developments in interpreting services and the certification of interpreters there are clear challenges. Ensuring fairness in proceedings in courts and tribunals as well as in other legal contexts is not an issue that can be considered solely with respect to the law. The mere introduction of a person who is responsible for the communication between all the parties in a legal interaction must not be seen as the only requirement for achieving fairness in proceedings where a party does not have sufficient ability to communicate in English. In light of this, therefore, ensuring of fairness extends to what occurs before the proceedings and needs to take into account the reality of the supply and quality of interpreters which, while it is improving, will always present challenges to the administration of justice.

Dr Adolfo Gentile has had a long involvement in the field of interpreting and translating in Australia – in practice, teaching and research as well as in policy-making. He was also a member of the Refugee Review Tribunal and Migration Review Tribunal. His international professional experience includes his involvement with the International Federation of Translators (FIT) of which he was also president. EMAIL [e-mail].

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^[1] M Groves, ‘Interpreters and fairness in administrative hearings’, Melbourne University Law Review, Vol. 40, No. 2, 2016, 506; La Trobe Law School – Law & Justice Research Paper Series, Paper No. 1708.

^[2] U Ozolins, The Politics of Language in Australia, Cambridge University Press, Cambridge, 1993.

^[3] U Ozolins, ‘Factors that determine the provision of public service interpreting: Comparative perspectives on government motivation and language service implementation’, Journal of Specialised Translation, No. 14, 2010, 194-215.

^[4] S B Hale, Interpreter policies, practices and protocols in Australian courts and tribunals: A national survey, Melbourne: Australasian Institute of Judicial Administration Incorporated, 2011.

^[5] Gaio v The Queen [1960] HCA 70; (1960) 104 CLR 419.

^[6] Perera v MIMA [1999] FCA 507; (1999) 92 FCR 6 (Kenny J).

^[7] A Gentile, ‘Interpreting as a human right – institutional responses: The Australian Refugee Review Tribunal’, The Interpreters' Newsletter, No. 17, 2012, journal of the Scuola Superiore di Lingue Moderne per Interpreti e Traduttori, University of Trieste.

^[8] See also s24(1) of the Victorian Charter of Human Rights and Responsibilities Act 2006 and s21(1) of the ACT Human Rights Act 2004, which also apply to civil proceedings.

^[9] See Groves, above note 1.

^[10] Judicial Council on Cultural Diversity, Recommended National Standards for Working with Interpreters in Courts and Tribunals, published by the Council (jccd.org.au) in 2017.

^[11] See the NAATI website at naatigbb.com.au for the details of the new system.