Working with Interpreters: A workshop for legal practitioners
Law Society of Tasmania
17 March 2023
Amicus Curiae Legal Translations
Solicitor admitted in NSW & England and Wales and NAATI Certified Translator (English > Spanish and French, Italian, Portuguese & Spanish > English)
Topics that we will cover today
1.The differences between translating and interpreting (T&I).
2.Interpreting modes and their use in legal settings.
3.T&I in community settings.
4.Assessing interpreting needs and booking interpreters.
5.Caselaw involving interpreted evidence.
1.Differences between Interpreting and Translation
Translating Translation involves transfer of a written text from a LOTE (language other than English) into English and vice versa.
So a translator works with documents, in the comfort of an office, has resources available (dictionaries, glossaries, etc.) and the opportunity to research terminology.
Australian authorities require that documents in a LOTE be translated by a certified translator (or highest available credential in the language).
In Australia, NAATI is the agency that regulates who can call themselves a certified translator / interpreter.
Certified translations bear the translator’s stamp issued by NAATI
Interpreting
• Involves spoken or signed language.
• Immediacy with production of oral ‘text’ (or sign in AUSLAN).
• Interpreter generally works in both directions in the same assignment.
• No opportunity for ‘editing’ – only rectification afterwards.
• Preparation is essential, as research is not possible throughout the assignment.
Professor of Interpreting
Sandra Hale – University of NSW:
'There is still a naïve assumption that as long as someone speaks two languages (to whatever degree of competence) and swears on oath to interpret faithfully, quality will be guaranteed. This misconception is perpetuated by the belief that interpreting is a simple word-matching exercise.'
The interpreting process
“(T)he interpreter has first to listen to the speaker, understand and analyse what is being said, and then resynthesise the speech in the appropriate form in a different language ...” (Jones, 1996: 6).
Specifics of LEGAL interpreting
The rendition has to be accurate not just in content but also in form (pragmatic transfer) i.e. the interpreter must be able to reproduce the manner and intent of the source utterance (register, tone, hesitations, etc) in order to allow the person listening to the interpreted rendition to get to the facts, or to fully understand the questions being asked of them.
Qualities of interpreters
1. Language skills – mastering fully A and B languages.
2. Analytical skills – semantic / pragmatic transfer.
3. Listening and recall – ‘active listening’.
4. Interpersonal & Interactional skills – dealing with ‘clients’, managing turn-taking, clarifications, etc.
5.Ethical
6.Speaking
7.Cultural knowledge.
8.Subject knowledge - capacity to acquire terminology.
2.Interpreting
Consecutive interpreting
The interpreter waits until the speaker has finished before beginning the interpretation.
Used in triadic exchanges (lawyer-client conference, witness testimony, etc).
Features
- Time to analyse the message as a whole (easier for interpreter to understand its meaning).
- Interpreter speaks to listeners face to face and actually ‘becomes’ the speaker.
- Greater load on short-term memory may lead to omissions.
- Lengthens proceedings.
Example of consecutive interpretation :
Coroner Inquest into disappearance of Theo Hayez (9’40’’)
https://www.youtube.com/watch?v=HXVoxYTQkTk
Simultaneous interpreting
• Interpreter provides the target-language message a few seconds behind speaker.
• Interpreter works on units of meaning, giving the portion that the interpreter has understood while analysing and assimilating the next idea.
Applications
- In court, with represented LOTE defendants (court proceedings simultaneously interpreted into LOTE so accused can be “linguistically present” -> Procedural fairness requirement.
- In any exchange where a speaker does not break to allow interpreting, or where circumstances do not allow a break (e.g. audience that does not understand the speaker’s language can follow what is said simultaneously).
- Can also be done remotely with platforms that allow SI (e.g. Zoom, Webex, Interprefy, KUDO, etc)
Considerations
- Best delivered with equipment (e.g. tour guide units, when booths are not available)
- Lengthy assignments require 2 interpreters to avoid cognitive fatigue.
Example of simultaneous interpretation: Moot court (7’28’’)
https://www.youtube.com/watch?v=q71pFuXPpuo
Sight Translation
Involves reading a written text out loud, into the other language.
Interpreter needs time to process written text and organise into target language.
DOES NOT replace the need for translations (See JCCD Standard 26).
Applications
Statements that have been taken in LOTE through an interpreter, then written in English to present as evidence (must include interpreter certification).
Any reference to written documents made when questioning a witness or interviewing a client through an interpreter.
3.T&I in community settings
Community T&I in Australia
T&I practitioners must have NAATI credentials to provide services in this setting.
The National Accreditation Authority for Translators and Interpreters:
Regulates entry into the profession through testing (and setting pre-certification training requirements).
Sets recertification requirements (3 year certification periods).
Not all languages have the same certification levels (Language Tiers):
Recognised, Certified Provisional, Certified, Specialist.
Interpreters in Courts and Tribunals
Comprehensive guidelines produced by the Judicial Council on Cultural Diversity (JCCD 2017 and 2022).
Standards and best practice recommendations for courts, judicial officers, interpreters and legal practitioners.
In NSW civil jurisdiction, incorporated into UCPR 2005 (Part 31, Division 3), to be read together with Practice Note SC Gen 21 of 4 March 2020.
4.Assessing interpreting needs and booking interpreters
Judicial guidance
Full court of the Federal Court in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212:
‘whether the applicant has had a real and fair opportunity to put what she or he wanted to put, to understand what was being said to him or her, and to participate in the hearing in a way from which it can be concluded that the hearing was fair, and thus that administrative justice was done.’
How to tell when you need an interpreter for your client
• A person from a CALD (culturally and linguistically diverse) community may have functional English (enough to go to the post office or the shops) but not to give instructions to a lawyer.
• https://jccd.org.au the Judicial Council on Cultural Diversity has looked at this [and has set standards for Legal Practitioners]
• Also see annexure 4- the four-part test for determining need:
https://jccd.org.au/publications/national_standards_interpreters/annexure-4four-part-test-for-determining-need-for-an-interpreter/
What you need to find out from your client, before booking an interpreter
• Client’s nationality, but not only. Ask: “What language do you (client) speak at home?” Use the Language Identification Card available online
• Dialects of Arabic can be mutually unintelligible (Arabian peninsula v Libya or Iraq) same with Congo Swahili and East African Swahili, etc.
• BUT polycentric languages may be well understood across regions so always check with the interpreter (e.g. Spanish in any of the 20 countries where it’s an official language).
• Is the interpreter’s gender relevant (DV, sexual asault cases?).
Which interpreter to book?
• Let the language tier guide your expectations.
• Refer to JCCD Standard 11 – Engaging an interpreter]
• Scenario: Sarah is a criminal lawyer based in Sydney and has an appointment with a client who faces criminal charges. The client is from a CALD community. Sarah has ascertained that the client’s language is Turkish. As Turkish is a Tier A language, Sarah is aware that the services of a certified specialist (legal) interpreter or a certified interpreter in Turkish should be obtained. Sarah uses the NAATI directory to get in touch with an interpreter https://www.naati.com.au
Agency or Freelance Interpreter?
The choice is yours and your organisation’s…
your client conference or court hearing.
Alternatively, you can use the NAATI directory or the AUSIT directory https://ausit.org/directory/ and book an interpreter directly.
Some firms/community legal centres have an agreement with an agency which will do the ring around to find an interpreter for
Questions Sarah may want to ask the interpreter / agency to decide the interpreter’s suitability for the assignment
• What formal training do you have in interpreting? (Tafe diploma? BA? MA?)
• What is your experience in interpreting lawyer-client conferences/court proceedings?
• Are you a member of a professional association (eg AUSIT)?
• Do you know X (name of your client)? [Establish if conflicts of interest may exist]
What the interpreter needs in order to do an excellent job
• Preparation is essential and impossible without a proper briefing:
• JCCD standard 24 for legal practitioners
• Lawyer, introduce yourself and your role.
• Provide a short summary of the reasons for the meeting with the client.
• Set out what you want to achieve (eg. Instructions on pleading).
• Discuss any specialised terms / jargon.
Access to documents in advance
• Interpreters are not walking dictionaries – terminological research – creation of glossaries.
• Words are context-dependant eg ‘to produce’ does not mean the same in sentence (1) and (2) and would likely be interpreted using different words in LOTEs:
(1)The respondent has produced all the documents listed in the subpoena.
(2)The respondent’s prolonged intake of substance X produced long-lasting effects on his health.
Access to documents (contd)
• Interpreters are bound to uphold confidentiality AUSIT’s Code of Ethics https://ausit.org/wp-content/uploads/2020/02/Code_Of_Ethics_Full.pdf
• https://jccd.org.au/publications/national_standards_interpreters/recommendedstandards-for-interpreters/#standard19
• JCCD Standard 26 - Documents
• If documents cannot leave the possession of the lawyer, arrange for ‘reading time’ for the interpreter at the lawyer’s office so that the interpreter can have context and deal with terminological challenges (create glossary).
5.Caselaw involving interpreted evidence
Competent interpreting - Kenny J.:
[29]‘… there is rarely an exact lexical correspondence but, even so, some interpretations are better than others. Whilst interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.’
SZLDY v Minister for Immigration and Citizenship [2008] FMCA 1684
Errors easily identifiable and appeal allowed: [45] ‘The interpreter continued to interpret the word “persecution” as “prosecution” throughout the hearing … The effect on the applicant of such mistranslation is apparent from his response. Perhaps unsurprisingly, the applicant responded … “Why would I be prosecuted by the Lebanese? My name is clean I don’t have problems with the legal Lebanese government, the government of Saniora.”
However, the interpreter then mistranslated “prosecution” as “persecution”. The applicant’s response was translated into English as “According to the Lebanese government I have no fear of persecution. I have a clean name. I have no problems with them at all.” 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.’
De La Espriella Velasco v The Queen (2006) 31 WAR 291
Criminal appeal – interpreting errors – dismissed, Court at [98]:
‘They [interpreting errors] all fall to be considered in the context of two questions. The first is whether there was a failure of accurate interpretation in respect of any issue of specific significance to the case; the second is whether the combined effect of the deficiencies had potential to weigh adversely against the jury’s assessment of the appellant as a credible witness, or the content of the case he was seeking to advance.’
Hayes and Hale ’Appeals on incompetent interpreting’ (2010) 20 JJA 119
Analysis of 50 appeals from court and tribunals on grounds of incompetent interpreting 2006-2008
- Only blatant cases of poor interpreting successfully appealed:
- 8 out of 50.
HCA: Kiefel CJ, Gageler, Gordon and Steward JJ:
‘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 noncompliance with a condition expressed in or implied into the statute which authorises the decision-making process and sets the limits of decision-making authority.’
• Tips:
- check for signs that your client is following the interpreted proceedings;
- ask client if he/she can understand the interpreter; and
- if there is an apparent interpreting mistake, challenge the interpretation at the earliest opportunity [professional interpreters are prepared to deal with this].
Thank you!