Berbotto, J Angelo --- "The Recommended National Standards for Working with Interpreters: An underutilised best practice toolkit" [2022] PrecedentAULA 55; (2022) 172 Precedent 40

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THE RECOMMENDED NATIONAL STANDARDS FOR WORKING WITH INTERPRETERS

AN UNDERUTLISED BEST PRACTICE TOOLKIT

By J Angelo Berbotto

The Judicial Council on Cultural Diversity (JCCD) has just published the second edition of the Recommended National Standards for Working with Interpreters in Courts and Tribunals (RNS).^[1] Work on the RNS started several years ago (the first edition was published in 2017); however, implementation of the RNS by courts and tribunals has not been uniform.^[2] There are still many legal practitioners who are unaware of their existence.

This article explains the interpreter’s work before and during an interpreting assignment in a legal setting and provides tips to lawyers wishing to achieve best quality interpreted evidence from a culturally and linguistically diverse (CALD) witness.

A MISUNDERSTOOD PROFESSION

A former judge of the Supreme Court of South Australia has been quoted as saying the following about interpreters:

‘It cannot be overemphasised that an interpreter should interpret every single word that the witness utters, exactly as it is said, whether it makes sense or whether it is obviously nonsense; whether the witness has plainly not heard or whether, if he has heard, he has not understood. The interpreter should look upon himself rather as an electric transformer, whatever is fed into him is to be fed out again, duly transformed.’^[3]

This quote reveals how little the interpreting process is understood. The transfer from one language into another is not mechanical; languages communicate the human experience differently, using their own devices. Therefore, interpreting ‘every single word’ rather than ideas may lead to nonsensical results. The quote serves to highlight that eminent jurists are not necessarily good linguists. It is only by learning what interpreting involves that jurists can develop realistic expectations of interpreters and the work they do.

This article deals with interpreters, rather than translators. While translation involves the transfer of written text from a language other than English (LOTE) into English and vice versa, interpreting involves spoken language. The skills required to do these tasks are different.^[4] While a translator works with documents and has a range of resources available (such as dictionaries and the internet), an interpreter is required to think on their feet and come up with an utterance in English that conveys the meaning of what the LOTE speaker has said, or vice versa. This involves processes that happen in the interpreter’s head within a very short timeframe: listening to the speaker; understanding the message; analysing what is being said; and then resynthesising the utterance in the appropriate form in the other language.^[5]

In legal settings, such as when the evidence of a witness is being interpreted in a police interview or when a CALD witness is giving evidence in a trial, the interpreter’s rendition needs to be accurate not just in relation to content, but it also needs to convey the illocutionary force of the utterance. The interpreter needs to pay careful attention to the pragmatic markers in the utterance, such as indignation in the voice of the CALD person, and tone and hesitations, and convey these markers so that the person listening to the interpreted rendition – who may be a police officer, lawyer, judge or jury – is able to understand the content of the utterance in a manner as close as possible to the utterance of the original speaker.^[6] Most scholars agree that quality interpreting relays both the content of original utterances and the style of the speaker.^[7] Achieving this requires a specialist’s skill. Research has demonstrated that untrained bilinguals underperform in interpreting tasks for several reasons: they do not know the necessary techniques; they lack an extensive vocabulary in both languages; and they are not aware of the ethical principles that should guide the task of interpreting.^[8]

THE INTERPRETER’S TOOLBOX

Apart from mastering at least two languages, many other skills are necessary to become an interpreter including the ability to listen actively (and speak at the same time in simultaneous interpreting), analyse the input, and transfer the content both semantically and pragmatically.^[9] In order to achieve this, the interpreter must possess interactional skills (to deal with turn-taking management and seeking clarification); speaking skills (to express the ideas well); cultural knowledge; and subject knowledge (and the capacity to acquire terminology).^[10] These skills are typically acquired in post-graduate courses with an admission test to sift through the candidates with sufficient language knowledge in at least two languages.

The interpreter uses different modes of interpreting depending on the setting. Consecutive interpreting, where the interpreter waits for the speaker to finish speaking before starting to interpret, is typically used in lawyer-client conferences, during police interviews and when a witness is giving evidence.^[11] Simultaneous interpreting is typically used to interpret in real time what is being said in court (without pauses) to the CALD person either by whispering or through the use of technology (for instance, a radio transmitter and an ear-piece that the CALD person can use to listen to the interpreter).^[12]

CERTIFICATION OF INTERPRETERS IN AUSTRALIA

After WWII, when mass migration to Australia began, only ad-hoc interpreting by untrained bilinguals was available. It was only in the 1970s that Australian governments began to provide professional language services.^[13]

Since its creation in the 1970s, the National Accreditation Authority for Translators and Interpreters (NAATI) has accredited (and since 2018 certified) individuals who meet the criteria to work as interpreters in the public sector.^[14] Candidates must pass an examination to assess that they have the minimum skills and competence to work as an interpreter. The current certification system is more rigorous than the former in that it requires practitioners to renew their certification (equivalent to a lawyer’s ‘practising certificate’) every three years by engaging in a minimum amount of work practice (paid or unpaid) and completing Continuing Professional Development within the three-year period. Specific preparation courses to sit the provisional interpreter certification exam (see below for an explanation of this level) are currently available for 34 languages.^[15]

RNS GUIDANCE ON NEED FOR INTERPRETING AND LEVEL OF CERTIFICATION

The RNS are the result of research and input by a committee of specialists, including jurists and linguists. They assist the court and practitioners by providing guidance and a model to assess the need for an interpreter.^[16] They also shed light on the interpreter’s work and provide the court and lawyers with recommendations for improving the quality of interpreted proceedings.

The RNS explains the relationship between the size of a CALD community and the availability of interpreters. NAATI certifies interpreters at different levels:

1. Certified specialist legal interpreters: experienced and accomplished interpreters with expertise in legal domains (currently, this credential is only available in a few of the Tier A languages^[17]).

2. Certified interpreters: can transfer non-specialised messages from a source language into a target language that accurately reflects the meaning.

3. Certified provisional interpreters: can transfer non-complex, non-specialised messages from a source language into a target language that accurately reflects the meaning.

4. Recognised practising interpreters: can be used for low demand languages and languages of new and emerging communities where testing is not available. Although these practitioners may have completed formal training and possess practical work experience as an interpreter, their skills have not been tested by NAATI.^[18]

The RNS set out what level of certification should be used for a particular language on the basis of the availability of interpreters. For Tier A languages^[19] the services of a certified specialist legal interpreter or a certified interpreter should be used.^[20] For Tier B languages,^[21] where there may be few certified interpreters, the services of a provisional interpreter may be used if no certified interpreter is available. Similarly, for languages in Tier C,^[22] the services of a certified interpreter or certified provisional interpreter should be used. And for Tier D languages,^[23] which may have no certified provisional interpreters available, recognised practising interpreters can be engaged if necessary.^[24] This guidance is essential for lawyers and court registry staff to understand which interpreting services they should engage.

Years of training and practice have equipped lawyers to anticipate the different types of situations in a courtroom. Unless an interpreter is trained and/or experienced in legal interpreting, they may not be able to accurately interpret the discourse of court proceedings, known for being ritualised,^[25] or accurately transfer the lawyers’ questions. For example, it is not unusual for a question such as ‘Can you tell the court what happened?’ to be asked. When translated literally into Spanish (‘¿Le puede decir al tribunal lo que pasó?’), the question elicits the response ‘Sí’ (‘Yes’), because in this type of situation, Spanish would use the imperative rather than the interrogative form (‘Dígale al tribunal lo que pasó’). A trained and/or experienced interpreter is aware of the resources in the other language to accurately transfer the message across.^[26]

CONTRIBUTION OF RNS TO BETTER INTERPRETING

The RNS introduce briefing of interpreters as best practice. This standard makes sense on different levels. An interpreter who is thrown into proceedings that are already underway needs sufficient information about the matter to do a good job.

Some examples

A very competent interpreter told the author an anecdote about a case where she was contacted by a language service provider (LSP) to interpret by telephone but she was not given any information about who she would be interpreting for and the context of the matter. She was put through to a court, and a magistrate was patiently waiting on the line. Without any introduction, or the possibility of asking for information, the magistrate asked the interpreter if she was taking an oath or an affirmation. The interpreter found herself interpreting for a woman who was giving evidence. One of the lawyers was asking questions about an argument the woman had witnessed between her daughter and son-in-law. The witness said words in Spanish to the effect of ‘Y entonces agarró el tenedor y se lo clavó’ (‘Then he/she grabbed the fork and stabbed him/her’). Because Spanish is a pronoun-dropping language (where use of the pronoun is optional as it is possible to know that the third person performed the action because of the verb conjugation), it was not possible to ascertain who grabbed the knife. And the object pronoun ‘se’ is not gender-marked in Spanish unlike in English (him/her). So the interpreter, needing to use a pronoun seeing as she was interpreting into English, transferred the utterance as ‘Then he grabbed the fork and stabbed her’. It was a split-second decision that seemed consistent with the information the interpreter had received so far. It was not until she noticed there was confusion in the courtroom that she realised there was an issue with the interpretation. Unbeknown to the interpreter, it was the wife who had been charged with stabbing the husband with a fork, so the interpretation was not consistent with the facts as known to everyone in court but the interpreter! This situation could have been avoided if the interpreter had been briefed in advance about the basics: it was a DV matter, the wife had been charged with assault occasioning actual bodily harm, there were two witnesses, etc.

Briefing and having access to documents can make a big difference to the quality of interpretation. The RNS acknowledge that preparation is essential and is impossible without a proper briefing.^[27] On another occasion, at a trial, the same interpreter told the author about a CALD witness who was being crossed-examined about the accused, a Mr Aguirre. It appeared that the witness was being avoidant as he hesitated and did not answer the questions being put to him through an interpreter. Counsel was asking about a Mr /əˈɡwaɪə/; the interpreter had not seen any documents so just copied Counsel’s pronunciation. Eventually, it became apparent that the reason for the witness’s avoidance was that he was disoriented because /əˈɡwaɪə/ did not sound remotely similar to the Spanish pronunciation of ‘Aguirre’ (/əgˈiːre/), so the witness did not know who Counsel was referring to. Had the interpreter seen the documents in advance, she could have prevented the misunderstanding by using the Spanish pronunciation of the name.

Ensuring the best quality interpretation

Appropriate interpreter preparation includes reading the core documents of a case, for instance a police facts sheet, affidavits, statements, expert reports and Crown case statements. This assists in creating a glossary and allows interpreters to anticipate terms that may trip them up if they are unexpected, such as highly technical language. Documents do not need to leave the possession of the lawyers or the court registry; it is sufficient to allocate reading time for the interpreter on the morning of the trial or a couple of days beforehand at the solicitor’s firm, DPP’s office or court registry. Interpreters owe a duty of confidentiality and are bound to use the documents for the purposes stated above and nothing else. The RNS acknowledge that interpreters are bound by the Court Interpreters’ Code of Conduct (which is also set out in the RNS).^[28] In addition, interpreters are motivated by doing a good job. Their allegiance is not to one party or another but to the court and to interpreting the utterances accurately and impartially.^[29]

A lawyer representing a CALD person who requires an interpreter would be in a better position to take instructions and advance their client’s interests if the interpretation is of the best quality possible. This issue goes beyond the interpreting capacity of the interpreter and has to do with the tools provided to the interpreter so that the work can be done properly.

CHALLENGING DECISIONS ON GROUNDS OF POOR INTERPRETING

Being proactive in obtaining quality interpretation pays off, as challenging a court decision on the basis of poor interpreting has proved successful only in a handful of cases, where the interpretation has been patently wrong. In SZLDY v Minister for Immigration and Citizenship,^[30] the appeal was allowed because the interpreter had confused ‘persecution’ with ‘prosecution’ and had muddled things to the point that the Court concluded that:

‘... The mistranslation could be said to have made it appear that the applicant was providing a non-responsive or vague response. It was submitted that it hindered the Tribunal’s comprehension of the difficulties the applicant was experiencing with what he understood were questions about prosecution rather than persecution.’^[31]

In that case, the appeal was successful. However, in a study carried out in respect of 50 appeals from courts and tribunals on grounds of incompetent interpreting during 2006–08, only the appeals in blatant cases of poor interpreting were allowed: eight out of 50.^[32] In the recent case of DVO16 v Minister for Immigration and Border Protection,^[33] the majority of the High Court (Kiefel CJ, Gageler, Gordon and Steward JJ) said:

‘Whether and if so in what circumstances mistranslation might result in invalidity of an administrative decision turns necessarily on whether and if so in what circumstances mistranslation might result in non-compliance with a condition expressed in or implied into the statute which authorises the decision-making process and sets the limits of decision-making authority.’^[34]

This decision confirms the approach of analysing the type of mistranslation and examining how it fits within the statutory framework. Mistranslation alone is not sufficient.

CONCLUSION

The interests of a CALD person are likely to be better protected if their legal representative is aware of the difference that good interpretation can make. By using the RNS for their clients’ benefit, lawyers will also be ensuring that our justice system becomes more equitable for court users that need interpretation. Just as lawyers carefully select experts to report on their client’s case, they should also ensure that the interpreter who will be the ‘voice’ of their client in court is of the highest possible quality.^[35]

It is time for judicial officers, court and tribunal staff, and legal practitioners to become familiar with and embrace the RNS. Doing so will provide not only insight into the work of the interpreter but also the realisation that the success of an interpreted matter is a shared responsibility and not just up to the interpreter.

J Angelo Berbotto is a solicitor admitted in NSW (2005) and England & Wales (2010) and is former Attorney-General of the British Overseas Territory of St Helena, Ascension and Tristan da Cunha. He is also a certified translator (Spanish-English both directions) and the principal of Amicus Curiae Legal Translations. PHONE [phone] EMAIL [e-mail].

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^[1] Online version of the RNS (2nd ed, 2022): <https://jccd.org.au/publications/national_standards_interpreters/>.

^[2] B Grimes, ‘Judicial reliance on the executive: Tensions, discrepancies and recommendations for court interpreter service delivery models across Australian jurisdictions,’ Griffith Law Review, Vol. 30, No. 1, 2021, 71–96.

^[3] In W Wells, An Introduction to the Law of Evidence, A. B. Caudell, Adelaide, 1991, 329 quoted in SB Hale, The Discourse of Court Interpreting, John Benjamins Publishing Company, Amsterdam, 2004, 8.

^[4] D Seleskovitch, ‘The teaching of conference interpreting in the course of the last 50 years’, Interpreting, Vol. 4, No. 1, 1999, 55–66 at 63.

^[5] R Jones, Conference Interpreting Explained, St Jerome Publishing, Manchester, 1998, 6.

^[6] S Hale, ‘Specialist legal interpreters for a fairer justice system' in S Faiq (ed), Discourse in Translation, Routledge, Oxford & NY, 2019, 47–66 at 51.

^[7] X Liu, and S Hale, ‘Achieving accuracy in a bilingual courtroom: The effectiveness of specialised legal interpreter training’, Interpreter and Translator Trainer, Vol. 12, No. 3, 2018, 299–321 at 300.

^[8] For some examples on the (lack of) skills of untrained bilinguals: J Cambridge, ‘Information loss in bilingual medical interviews through an untrained interpreter’, The Translator, Vol. 5, No. 2, 1999, 201–19; also F Dubslaff and B Martinsen, ‘Exploring untrained interpreters' use of direct versus indirect speech’, Interpreting, Vol. 7, No. 2, 2005, 211–36; and in particular S Hale, J Goodman-Delahunty and N Martschuk, ‘Interpreter performance in police interviews. Difference between trained interpreters and untrained bilinguals’, The Interpreter and Translator Trainer, Vol. 13, No. 2, 2019, 107–31.

^[9] H Mikkelson, ‘Interpreting is interpreting – or is it?’ (1999) 6 <https://www.researchgate.net/publication/41373508_Interpreting_Is_Interpreting_-_Or_Is_It>.

^[10] Ibid.

^[11] For an example of consecutive interpreting, see <https://www.youtube.com/watch?v=HXVoxYTQkTk>.

^[12] For an example of simultaneous interpreting, see <https://www.youtube.com/watch?v=q71pFuXPpuo>.

^[13] F Pöchhacker, ‘“Getting organized”: The evolution of community interpreting’, Interpreting, Vol. 4, No. 1, 1999, 125–40 at 135.

^[14] See <www.naati.com.au>.

^[15] See <https://www.naati.com.au/services/endorsed-qualification/endorsed-qualification-institutions/>.

^[16] RNS, above note 1, annexure 4 – Four-part test for determining need for an interpreter.

^[17] The Tier A languages are: Arabic, AUSLAN, Cantonese, Greek, Italian, Japanese, Mandarin, Persian, Spanish, Turkish and Vietnamese.

^[18] Information about the qualifications pathways can be found at <https://www.naati.com.au/wp-content/uploads/2022/03/INTERPETER-Certification-Scheme-Design-Summary_2022-1.pdf>.

^[19] See above note 17.

^[20] RNS, above note 1, 11.4.

^[21] The Tier B languages are: Bangla, Bosnian, Croatian, Dari, French, German, Hindi, Hungarian, Indonesian, Macedonian, Polish, Portuguese, Russian, Serbian, Sinhalese, Tamil and Thai.

^[22] In Tier C languages there are 15 international languages: Assyrian, Burmese, Chin (Haka), Chin (Tedim), Dinka, Hakka, Hazaragi, Karen, Kurdish/Sorani, Nepali, Nuer, Oromo, Pushto, Swahili/Kiswahili, Tigrinya and 30 Aboriginal and Torres Strait Islander languages: Alyawarra, Anindilyakwa, Anmatyerre, Burarra, Djambarrpuyngu, Eastern Arrernete, Fitzoy Valley Kriol, Gumatj, Gurindji Kriol, Kala Lagaw Ya, Kimberley Kriol, Kriol, Kukatja, Kunwinjku, Luritja, Martu Wangka, Modern Tiwi, Murrinh-Patha, Ngaanyatjarra, Nyangumarta, Pintupi-Luritja, Pitjantjatjara, Torres Strait Island Creole, Walmajarri, Warlpiri, Warumungu, Western Arrarnta, Wik-Mungkan, Yankunytjatjara and Yindjibarndi.

^[23] The Tier D languages are any languages other than languages in tiers A, B and C.

^[24] RNS, above note 1, 11.5.

^[25] A Durant and J Leung, Language and Law, Routledge, London & NY, 2016, 72.

^[26] SB Hale, above note 3, 42.

^[27] RNS, above note 1, standard 24.

^[28] Ibid, standards 18–20.

^[29] Ibid.

^[30] [2008] FMCA 1684.

^[31] Ibid, [45].

^[32] A Hayes and S Hale, ‘Appeals on incompetent interpreting’, Journal of Judicial Administration (JJA), Vol. 20, 2010, 119.

^[33] [2021] HCA 12; (2021) 95 ALJR 375.

^[34] Ibid, 379.

^[35] A good introduction to the RNS from the perspective of interpreters is available at: <https://www.youtube.com/watch?v=MwxsAJC91Xo>.