A lack of certified interpreters and understanding of their needs during court proceedings is undermining access to justice and a fair trial for non-English speakers, according to UNSW research.
Australian courts need to work better with interpreters to improve access and equity for people from linguistically diverse backgrounds. Photo: Aerogondo/Getty Images.
A research project by academics at UNSW’s School of Humanities & Languages has identified a need to improve the interpreting communication culture in our courts, highlighting the key role of judicial officers – magistrates and judges.
More than 1 in 5 Australians speak a language other than English, with the 2016 census identifying more than 300 separately identified languages spoken in Australian homes. Although court interpreters are required in more than 175 languages, interpreting training is available in less than 20 of those.
This raises questions about equity, access to justice and the nature of a fair trial for non-English speakers.
UNSW’s Professor Ludmila Stern is a historian and interpreter who researches interpreted proceedings and intercultural communication in international and domestic courts and tribunals. She is leading a research project entitled Communication between judicial officers and court interpreters: Implications for access to justice, which examines whether access to justice is affected in criminal trials that involve interpreters.
“Interpreters have a key role to play in ensuring access to justice and a fair trial for defendants. However, their skill alone is not enough to ensure equity. How courts accommodate bilingual communication and interpreters’ professional requirements makes a difference too,” says Prof. Stern.
While there is a clear need to increase the number of trained and certified interpreters in Australia, especially for the large number of new and emerging languages of recent migrants, refuges, asylum seekers and First Nation languages, this project’s focus, explains Prof. Stern, “is on the significant role court administration and judicial officers play in ensuring effective interpreted communication.”
Prof. Stern and Professor Sandra Hale, a pioneer in legal interpreting research from UNSW, have been offering training for judicial officers on how to work with interpreters for over twenty years, as part of the professional development and initial training for new judicial officers organised by the National Judicial College of Australia and other jurisdictions. Prof. Hale was also one of the principal authors of the National Standards for Working with Interpreters in Courts and Tribunals, which was first published in 2017 and updated last year.
Enabling effective interpretation in court
The current research project includes interviews with judicial officers about how they work with interpreters and with interpreters about their experience in court, as well as observations of interpreted proceedings around the country.
In some cases, says Prof. Hale, “it was very satisfying to see that things ran smoothly because the judicial officer, the interpreter and the lawyers followed the recommended standards, and all worked together collaboratively and effectively.”
However, interpretation is not at the forefront of court room proceedings. “The judicial officers are focused on the case,” says Prof. Stern. “They are busy and may forget about the interpreter, so they are not aware of the interpreter’s requirements to achieve interpreting quality.”
“Interpreters' skill alone is not enough to ensure equity. How courts accommodate bilingual communication and interpreters’ professional requirements makes a difference too,” says Professor Stern.
In Australia, interpreters don’t have a dedicated workspace in the courtroom. If they interpret for a witness, they join the witness inside or beside the witness box, and they interpret in ‘consecutive mode.’ So, for example, the lawyer asks a question, pauses, and the interpreter interprets into the language of the witness. Then the witness provides an answer, and the interpreter interprets into English for the court. “This provides interpreters with visibility, and the English interpretation goes on the court record,” says Prof. Stern. “If interpreters need to ask a question, they can raise their hand, and ask for clarification. They might ask for repetition or a break.”
The rest of the time the interpreter sits beside the defendant either in the public gallery or in the dock. In this case, they do what is called whispered simultaneous interpretation, also known as chuchotage from the French word for whispering.
“Chuchotage is a very taxing form of interpretation,” says Prof. Stern. “People speak quickly, without pauses, the interpreter doesn’t have headphones to block external noises, and there might be problems with acoustics. They are not provided with preparation materials or briefing, so they are interpreting on the spot. They are ‘invisible’ and often completely forgotten by the court in this situation.
“This begs the question. What does the interpreter in the dock or public gallery manage to capture? Are they able to interpret accurately?”
Courts need to improve their support of the interpretation process
Approximately half the judges and magistrates interviewed for the study in 2020-23 said they were aware of the recommended National Standards and those who adhere to them found them straightforward.
“Judicial officers say they try to slow down their speech, that they sometimes pause or repeat what they say to accommodate the interpreter,” explains Prof. Stern. "And our observations have shown that in some cases they do slow down, pause, and accommodate the interpreter. However, at different points, they speed up again.
“The majority of judges said they ask lawyers to speak more slowly, but once again the observations have shown that they sometimes do that. They are more accommodating when the interpreter is in the witness box interpreting in consecutive mode, but most forget about the interpreter sitting in the dock or public gallery interpreting in the whispered simultaneous mode.”
"Speakers need to speak at a certain pace, perhaps about 100 words per minute, to give interpreters time to comprehend, convert and relay the meaning of what is said. Interpreters cannot interpreters cannot interpret for more than 30-45 minutes without a break, says Professor Stern."
Rather than rely on the National Standards or other policy documents, some judges said they relied on their experience and their ability to work with interpreters intuitively when faced with interpretation challenges in the courtroom.
The more visible the interpreter the better the accommodation. “But,” says Prof. Stern, “it’s clear that the interpreting process itself is also invisible, in that it’s poorly understood by those whose speech is being interpreted. Speakers need to speak at a certain pace, perhaps about 100 words per minute, to give interpreters time to comprehend, convert and relay the meaning of what is said. Interpreters cannot interpret for more than 30-45 minutes without a break, and they may need repetition if the speaker turns their back to them.”
It is a difficult job, physically as well as mentally. “Imagine sitting in the dock next to the accused with your neck and your body twisted as you whisper what is being said to the accused. Interpreters are straining their voice, straining their body. And the mental effort is also fatiguing.”
Courts must improve their accommodation of interpreters
In international conference and court settings where simultaneous interpreting takes place, the practice is for interpreters to work in teams of two or three, to work in 30-minute shifts wearing headphones and speaking into a microphone so they are isolated from external sounds.
“Australia has not followed this process, first established by the International Military Tribunal in the Nuremberg Trials, and it is affecting the efficacy of the communication process in courts here,” explains Prof. Stern.
“Australia’s National Standards recommend that interpreters work in pairs, taking turns every 30 minutes to avoid fatigue and ensure quality, using inexpensive portable simultaneous interpreting equipment,” says Prof. Hale. “Some interpreters in Australia have begun to use this equipment, which has been purchased and provided by the major government language service provider Multicultural NSW. This has vastly improved interpreters’ working conditions for at least some cases. It shows that small improvements can have major impact.”
Integral to improving access to justice for users of the court system from linguistically diverse backgrounds is improving the quality of communication in interpreted proceedings.
“Removing language barriers is essential to ensuring people with limited or no English proficiency receive a fair trial. Interpreters, judges, magistrates and lawyers must work collectively towards optimal communication to ensure non-English speakers have equitable access to justice,” says Prof Stern.
This project is led by UNSW Chief Investigators Professor Ludmila Stern, Professor Sandra Hale, Professor Stephen Doherty and Associate Professor Melanie Schwartz, with project partners including Aboriginal Interpreter Service NT; All Graduates Interpreting and Translation Services; Australian Institute of Interpreters and Translators Inc.; The Australasian Institute of Judicial Administration; Judicial Council on Diversity and Inclusion, Multicultural NSW, National Accreditation Authority for Translators and Interpreters; TIS National.