According to a background paper commissioned in 2002 by the Law and Justice Foundation, 1.2% of the Australian population aged below 65 (200,700 people) had a sensory disability. [1] The most prominent sensory disability was hearing related, which accounted for 159,900 individuals (1% of the population under 65). [2] Statistics show that the number of hard of hearing and / or deaf participants involved in the Australian legal system in 2004 approached the 7,000 mark however, demands for interpreters were unmet in around 3,000 matters. [3]
Hard of hearing and deaf people require particular support to overcome a multitude of communication and knowledge barriers which can potentially arise in their role as participants in the Australian legal system. The difficulties experienced by hard of hearing and deaf people do not happen because of their disability per se, but because of the way society treats them. [4] Such difficulties, with respect to social and moral imperatives, impacts on the notion of what is considered a fair trial therefore, the aim of this paper is to evaluate the extent to which their ability to participate in the Australian legal system is supported by the use of interpreting services. Further, regard will be given as to the rights to an interpreter and what function the interpreter plays within the judiciary and finally, a brief discussion into those responsible for reform.
Hard of hearing and deaf participants within the Australian legal system: Is there a right to an Interpreter?
General
In Australia, there is no automatic common law right to an interpreter for parties to a dispute. [5] In jurisdictions where common law prevails, the decision to engage an interpreter is discretionary based and rests with the presiding judicial officer. [6]
Case law provides that the use of discretion in criminal proceedings must entail consideration of fundamental common law rights in order to execute a fair trial. [7]
The Accused
Such was said in Kunnath v the State: [8]
It is an essential principle of criminal law that a trial for an indictable offence should be conducted in the presence of the accused…not simply that there should be corporeal presence but that the accused, by reason of his presence, should be able to understand the proceedings. An accused who has not understood the conduct of proceedings against him cannot be said to have had a fair trial.
Kirby P in Adamopoulos v Olympic Airways [9] warned that a rudimentary understanding of English is unsatisfactory for the purpose of communicating in court proceedings [10] and the consequence of failing to provide adequate or proper interpreting services for a participant when required may result in a miscarriage of justice for which proceedings are likely to be stayed. [11]
Taken from the case of R v Tran [12] , Lamer CJ provides:
"the very legitimacy of the justice system in the eyes of those who are subject to it is dependent on their being able to comprehend and communicate in the language in which the proceedings are taking place'. [13]
This consideration is paramount irrespective of whether the participant is the accused or a witness in a trial. [14]
The Witness
Some statutory rights exist in the South Australian [15] and Commonwealth [16] jurisdictions which provide that a right to an interpreter exists for a witness who cannot communicate effectively in English or when being questioned by police in any court proceedings and, for witnesses in criminal trials respectively. In common law jurisdictions, the decision to engage an interpreter is discretionary based and rests with the presiding judicial officer. [17] Dairy Farmers Cooperative Milk Co Ltd v Acquilina [18] suggests that access to an interpreter reflects an attitude of a society, racially and linguistically homogeneous and often unsympathetic to the problems of participants struggling in an unfamiliar environment. [19] Professor Leal opines that judicial officers occasionally show intolerance to the predicament of a witness who may be at risk of communication barriers and who seek the provision of an interpreter. [20] Communications which come adequately in a relaxed environment tend to disappear from recollection and technical expressions cannot be recalled, supposing they were ever known. [21] In a courtroom environment, questions are often asked in great length or speed and in a vernacular not fully understood by laypersons.
The mere fact that a person can communicate to perform mundane or social tasks or even business obligations at the person's own pace does not necessarily mean that they are able to cope with the added stresses imposed by appearing as a witness in a court of law. Therefore, some remarks in Dairy Farmers, although no doubt considered appropriate for the time in which they were expressed, are seen as inappropriate to the responsibility of today's courts operating in careful consideration of the Anti-Discrimination Act 1977 (NSW) (ADA)and the Disability Discrimination Act 1992 (Cth) (DDA).
The Juror
The participation in juries by representatives of the community is a fundamental element of the administration of justice, and therefore, jury service, like voting, is a right and obligation afforded to Australian citizens. [22] Currently, deaf people cannot serve as jurors in Australia and debates over whether hard of hearing or deaf people should be permitted to serve as jurors have long featured in legal journals. [23] Current policy in the majority of countries state that deaf people are not capable of serving as jurors, due to their 'incapacity' or disability, that is, their hearing loss. [24]
In 2002 the NSW Attorney-General asked the New South Wales Law Reform Commission (NSWLRC) to conduct an inquiry into whether people who are profoundly deaf or have a significant hearing loss should be able to serve as jurors. [25] In undertaking their review, the NSWLRC was to have regard to the ADA, the DDA, and the need to maintain confidence in the administration of justice in New
South Wales. [26] One re-occurring issue relating to jury service by hard of hearing or deaf people is that the presence of an interpreter in the deliberation room violates the rule excluding persons other than jurors in the deliberation room. In Eckstein v Kirby, [27] the US District Court ruled against interpreters in the deliberation room, noting that secrecy must be preserved to guarantee a vigorous and candid discussion of the issues by the jurors. Experience has shown that the anticipated problems have not occurred for example; in overseas jurisdictions where interpreters have accompanied the jurors in the jury room, there have been no reported breaches of confidentiality, interpreter breaching the oath of non-involvement or any problem with respect to the panel not being able to effectively deliberate because of the presence of the interpreter. [28]
A number of US States have adopted legislation or court rules allowing an interpreter to accompany a deaf juror during deliberations. [29] As to be expected, safeguards such as specifying that the interpreter will only act to communicate for and to the juror with the disability [30] as well as refraining from personal interjection and upholding the secrecy of the proceeding are in place. [31]
While the Jury Act 1977 (NSW) does not specifically exclude people who are deaf or have a significant hearing impairment, [32] there has been an administrative determination that they could not fulfil the duties of a juror. Deafness constitutes a disability for the purposes of the ADA. [33] Disallowing hard of hearing or deaf persons from serving as jurors falls within discriminatory behaviour on the basis of disability, as defined in s 49B [34] but unfortunately, this does not make it unlawful. Section 54(1)(a) permits discriminatory behaviour where it is necessary in order to comply with the requirement of another statute; ie the Jury Act. In 1999, the Draft Anti Discrimination Bill was put forward stating, an act "...to promote equality of opportunity for all people in identified areas of activity" [35] and not surprisingly, the NSWLRC has recommended the repeal of s54 suggesting that it was only ever intended as a temporary measure. [36]
Lord Justice Auld supported people with disabilities serving as jurors "not because there is a general right, as distinct from duty, to undertake jury service or under any anti-discrimination legislation, but because such inclusiveness is a mark of a modern, civilised, society". [37]
The Interpreter
The role of the interpreter is to provide a clear channel of communication between all participants. The National Accreditation Authority for Translators and Interpreters (NAATI) [38] is the body responsible for setting and monitoring the standards for the translating and interpreting profession in Australia and is the only agency that issues accreditation for interpreters. [39] For court proceedings, it is desirable to engage a 'conference interpreter' which is equivalent to a level seven on a scale of nine levels. The conference interpreter represents an advanced level sufficient to handle complex, technical and sophisticated court proceedings [40] however, it is not always possible to engage an interpreter of this calibre.
A survey of Auslan interpreters returned a finding that in some cases, interpreting that should have been undertaken by a conference interpreter were in fact carried out by interpreters of a lower standard. [41] This gives rise to questions of competency and accuracy. Misunderstandings are common in monolingual situations and therefore, potential in situations requiring an interpreter is much greater. [42]
Great emphasis has been placed on accuracy when evaluating an interpreter's performance in the context of legal proceedings, given the attention to detail that is required. [43] A key issue defined by the NSWLRC is the use of interpreters and the challenge of translating difficult legal concepts using Auslan. [44]
Auslan was recognised by the Australian government in policy statements in 1987 [45] and 1991 [46] as a 'community language other than English' and the preferred language of the majority of the hard of hearing and deaf community. Auslan is a visual spatial language which consists of hand movements, facial expressions, body language and finger spelling. Prior to the recognition of Auslan, literal interpretation was considered an indication of accuracy [47] however, in the words of Lastor and Taylor, "it is ironic that law, as a profession of words, should deliberately construct a role for an interpreter which denies the complexities inherent in language". [48] It is a misconception that interpreting one language to another is a mechanical process; a process which has been labelled by Lastor and Taylor as a 'conduit pipe' devoid of complex human interaction. [49]
Empirical research has found that interpreting can have a significant impact on the outcomes of legal cases. [50] The findings reveal that when the performance of interpreters during a trial or hearing is questioned on appeal, the higher courts are not convinced by arguments regarding the impact of poor interpretation in regards to the participants understanding of proceedings or the outcome of the case, unless the interpreting errors are directly related to an issue of specific significance to the case and constitute a jurisdictional error. [51] Unfortunately this re-enforces the conduit model which appears to covey hidden benefits to the courtroom agenda. The conduit model encourages impartiality by restricting the interpreter's exercise of discretion [52] thus, curtailing the interpreter's contribution to the proceedings by confining the human component that may pose a threat to lawyers' strategic vernacular.
The conduit model allows lawyers to maintain control over the direction of courtroom proceedings [53] and because of which, an 'objective standard of good interpreting' is likely to remain elusive. "Ultimately, court interpreters try to square the circle. Even the best ones are doomed to failure from time to time. But when the system fails to acknowledge the need to train, qualify, certify and recruit according to the principle of excellence, it is condemning itself to low-calibre interlingual performance which will seriously impair the 'tissue of justice', by building in systematic 'missed stitches'". [54]
Access to Interpreter Services
Typically, Auslan interpreters are booked via interpreting agencies such as Deaf Australia. [55] Deaf Australia is the national peak body that represents hard of hearing and deaf people in Australia and joins with the various state Deaf Societies in consultative relationships. [56]
In 2004, demands for interpreters were unmet in around 3,000 matters [57] which, in percentiles, equates to 44% of participants who were not able to gain access to an interpreter. [58] Somewhat surprisingly, empirical research suggests a lack of awareness as to interpreter services, a lack of available interpreters and, interpreters being too expensive or not funded as a cause for the disparity. [59] Schetzer, Mullins and Buonamano propose that access to justice involves three key elements: first; equality of access to legal services, second; national equity, and third; equality before the law. [60] In the event that Auslan users were not able to obtain a professional interpreter for their legal requirements, an astounding 50% went without an interpreter [61] and a further 30% went with a friend or family member who provided the interpreting service. [62]
The remainder postponed or delayed or cancelled legal obligations until a professional interpreter was available. [63] When weighed against the key elements of access to justice, the sharp contrast of the empirical data tends to suggest that administrative bureaucracy trumps equity and equality.
Reform
In a 2008 speech delivered by Professor Sandra Hale, [64] an expert in the field of the use of interpreters in the courts, three key institutional fractions were identified as equal culprits for slow moving reform. Citing Hertog, [65] Professor Hale concurs that governments may fear having to pay adequate fees to qualified interpreters, unqualified practitioners may fear losing their work and educational institutions may fear not attracting sufficient students or students with the high level of bilingual competence required to become interpreters. Based on these unnecessary fears, Hertog labels these culprits as "the unholy trinity" who are responsible for hindering progress. [66]
Courts should strive to ensure that no participant is disadvantaged by want of an interpreter where communication and knowledge barriers are likely to affect the outcome of what is perceived to be a fair trial and therefore, justice.
Common law jurisdictions should be encouraged to take into account the virtually universal acceptance in international statements of human rights of the right to have access to an interpreter in court proceedings where the participant feels the need for assistance justified. [67] Federal, State and Territory Attorneys-General must come together to put in place programs designed to ensure full and equitable access to all courts in Australia for hard of hearing or deaf participants using their preferred methods of communication.
Because common law discretion generally favours the use of an interpreter, consistency and regularity are reason enough for a prima facie legislative right to an interpreter in all Australian jurisdictions which is activated when a participant displays discernible communication barriers. Further, in accordance with the recommendations of the Australian Law Reform Commission (ALRC), this right should automatically apply in criminal and civil matters. [68]
Conclusion
It is now increasingly recognised that signing people constitute a group like any other non-English speaking language group in Australia. They have a distinct sub-culture recognised by governments and are united and symbolised by fluency in Auslan. It is concerning that in the 24 years of Auslan recognition, a large amount of matters are still going before the courts where participants have valid need for an interpreter but are not provided with one.
Equally concerning, there is little material available on the evidential and other issues relating to the use of interpreters within the legal system which is no doubt a reflection of the wider apparent lack of appreciation within the justice system and the legal profession of the importance of language and the nature and proper use of professional interpretation. [69] Australia's large number of hard of hearing and deaf population necessitates interpreters in greater numbers which requires investment in training and appropriate remuneration schemes. Mandatory training for interpreters will see expectations met regarding the interpreter's role in the courtroom. Coupled with improvements to the interpreter's working environment, training will similarly serve to enhance the quality of interpreting.
Social and moral imperatives equate to justice. The concluding concerns expressed above can be surmised in the quote of Moustacalis; "I am concerned that so many people who put their trust in the administration of justice in this province have suffered from lack of or incompetent interpretation. If you do not understand the proceedings, you are denied justice." [70]
