In legal settings, effective communication is fundamental to the principles of impartiality and fairness that uphold the justice system. This is why legal interpreting plays a significant role in the delivery of justice. Contemporary law and policy have recognised the need for regulation in this area, and practice guidelines have been implemented for working with interpreters in courts and tribunals. This includes the expectation that a credentialed interpreter be employed in courtroom or tribunal settings where parties or witnesses with limited English proficiency are at a disadvantage in participating and engaging in the proceedings.
WHAT IS LEGAL INTERPRETING?
Legal interpreting is a specialised interpreting practice that involves communicating translated text (mostly oral) in a legal or paralegal setting. This could include communication with law enforcement, interpreting court proceedings and interpreting between legal counsel and their client.
NAATI-certified interpreters play a vital role in removing the language barrier so that a party is made linguistically present at the proceedings as if they were a native English speaker. Where a language barrier exists, the absence of a professional interpreter can have severe repercussions, jeopardising the rights, well-being and safety of individuals. This article explores the reasons why engaging a legal interpreter and ensuring access to qualified language assistance is essential in the contemporary Australian legal environment.
ENSURES EQUAL ACCESS TO A FAIR TRIAL AND A JUST OUTCOME
Misinterpretation or non-interpretation may have a direct causal link to an unjust outcome, particularly when miscommunication is frequent or continuous. Such misinterpretations can significantly impact the final outcome of a proceeding, leading to unjust results and potential violations of rights.
One example lies within the case of SZOBN v Minister for Immigration and Citizenship (2010), where an applicant’s claims of religious persecution were initially discredited. However, upon review, a secondary interpretation of the applicant’s responses revealed that they were mistranslated, and her statements did in fact demonstrate she had an understanding of the faith she claimed to practise.
Furthemore, inaccurate interpreting was the basis for appeal in 287 cases within Australian courts between 1991-2008, and these errors mean that already time-consuming, costly and generally taxing proceedings are made even more onerous on the system, and on the client.
UPHOLDS CONFIDENTIALITY AND IMPARTIALITY
Certified legal interpreters are bound by the AUSIT code of ethics, which includes maintaining strict confidentiality. The unauthorised disclosure of any information relating to an ongoing proceeding to a third party may prove detrimental to a case, and non-certified individuals are not bound by the same standards.
Furthermore, in the same way that jurors are required to be impartial and are excluded from a jury if their decision-making is influenced by a prior relationship or any bias, an interpreter is required to maintain absolute impartiality in the course of their duty. An interpreter is trained to relay information neutrally, and legal interpreters hold an utmost duty to the court to relay information accurately and impartially, even preceding their duty to the client. The concept that those who come before courts are entitled to a fair hearing before an impartial and independant decision-maker is a crucial facet of the Australian judicial system.
In the case of Rogic v Samaan , demonstrates the court’s position that interpreting is a highly specialised practice to be conducted exclusively by accredited interpreters who are independant not from the proceedings. In this case, a will that was submitted as crucial evidence was translated from Serbian to English by the client’s solicitor. The NSW Supreme Court noted that when a solicitor adopts the role of interpreter, they may contribute conscious or unconscious bias, skewing the accuracy of the translation. These concerns also extend to situations where a family member or friend may step in as an unqualified interpreter.
ALLOWS EQUITABLE ACCESS TO JUSTICE
Denying individuals the opportunity to take an active role in the proceedings that involve them by failing to arrange an interpreter significantly obstructs the pursuit of justice. The legal system, with its convoluted terminology and procedures, poses challenges for any individual, let alone someone participating in a legal process in a language incompatible with their native language. Australia’s legal system is predicated on the prospect that an individual from a culturally and linguistically diverse background is afforded the procedural fairness and administrative justice to which they are entitled, and that which a native English speaker in the same position would receive.
In another example of compromised due process and a potential miscarriage of justice, a Western Australian murder suspect in 2017 had his charge downgraded, and later, his conviction overturned and compensation awarded on the basis that he was not awarded rightful justice from the state due to his lack of language skill or cognitive ability to understand the legal process, including the police interrogation and the guilty plea he was instructed to enter into. The court in this case was very prepared to invalidate the conviction as it was clear an interpreter was needed, yet not obtained, and the admissions were unlikely to have been made if the interview had been conducted with proper procedure.
To uphold the principles of justice, fairness, and equal access and participation within the legal system, the provision of qualified interpreters in legal settings is paramount. Clear communication in a person’s competent language is essential for their effective participation and understanding of the proceedings.
Polaron’s interpreters have worked within the justice and law enforcement sector for many decades and have a wealth of experience and expertise when it comes to these highly complicated, sensitive and confidential cases. Contact Polaron Language Services today to prevent the consequences of inadequate interpreting resourcing and work towards a legal system that is accessible, equitable, and just for all. Call us on 1300 88 55 61 for all your interpreting inquiries, or alternatively click the below below.