11.01.2018
Recommendation 10–1 State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations to:
- establish interpreter services within the criminal justice system where needed; and
- monitor and evaluate their use.
10.4 There are many Aboriginal and Torres Strait Islander languages spoken throughout Australia, with some estimates placing the current number of Indigenous languages spoken nationwide at around 120.[4] In the Kimberley region alone it has been reported that there are up to 30 spoken languages, ranging from those that are commonly used to language groups that are spoken by a very small number of people.[5]
10.5 Aboriginal and Torres Strait Islander people, particularly in remote and regional areas, are often multilingual. For many people from isolated Aboriginal and Torres Strait Islander communities, English may be a second or third language.[6] The Productivity Commission reported that approximately 41% of Aboriginal and Torres Strait Islander people who come from remote areas speak an Aboriginal or Torres Strait Islander language as their first language, compared to about 2% of those living in metropolitan areas.[7] Additionally, Aboriginal and Torres Strait Islander people, particularly in remote and regional areas, may speak ‘Aboriginal English’. As identified by the Kimberley Community Legal Centre, ‘Aboriginal English… transforms the meanings of many English words and mixes English words with these different meanings with words and concepts drawn from Aboriginal languages’.[8]
10.6 Some Aboriginal and Torres Strait Islander people may find it difficult—if not impossible—to understand legal proceedings without access to an interpreter. In 2016, the Productivity Commission reported that 38% of Aboriginal and Torres Strait Islander first language speakers experience difficulties when communicating with service providers.[9] A 2002 survey conducted by the Office of Evaluation and Audit reported that 63% of Aboriginal and Torres Strait Islander legal services (ATSILS) practitioners experienced difficulty in understanding what their clients were saying, with 13% of those experiencing difficulty ‘very often/often’.[10] The issue of ATSILS practitioners experiencing difficulty in taking instructions can be pronounced in some areas. For instance, Wadeye, the largest Aboriginal and Torres Strait Islander community in the Northern Territory (NT), has been identified as a place where ‘almost all’ individuals seeking legal advice require an interpreter.[11]
10.7 The prevalence of hearing loss makes it equally difficult for many Aboriginal and Torres Strait Islander people to understand and participate in legal proceedings. While there are no formal studies that have looked into the extent of hearing loss among Aboriginal and Torres Strait Islander people engaged with the criminal justice system,[12] the over-representation of Aboriginal and Torres Strait Islander people with hearing loss in prisons has been identified.[13] In the NT, 90% of Aboriginal and Torres Strait Islander prisoners in the Darwin and Alice Springs correctional systems have hearing loss.[14]
10.8 The right to be able to understand legal proceedings is well-established in both domestic[15] and international law.[16]
10.9 The right to an interpreter is also well recognised. Domestically, the High Court held in Ebatarinja v Deland that ‘if the defendant does not speak the language in which the proceedings are being conducted, the absence of an interpreter will result in an unfair trial.’[17] The right to a fair trial itself has been variously described as ‘a central pillar of our criminal justice system’,[18] and ‘the central prescript of our criminal law’.[19] Internationally, art 14 of the ICCPR states that in criminal proceedings, everyone is entitled to ‘the free assistance of an interpreter if he cannot understand or speak the language used in court’. In relation to Aboriginal and Torres Strait Islander people with hearing loss, art 13 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) requires:
effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stage.[20]
10.10 The obligation to provide an interpreter extends beyond court proceedings and into other points in the criminal justice system. In all jurisdictions except the NT, when police are questioning an Aboriginal and/or Torres Strait Islander person, police have a legislative obligation to arrange for the services of an interpreter ‘where a person’s English is insufficient to enable them to understand the questioning or speak with reasonable fluency’.[21] In the NT, the police manual incorporates the Anunga rules, which include the requirement for an interpreter during questioning.[22]
10.11 While the entitlement to an interpreter is clear, practical challenges exist in procuring access to interpreters, both in relation to Aboriginal and Torres Strait Islander languages and where an Aboriginal and/or Torres Strait Islander person experiences hearing loss. The majority of deaf Aboriginal and Torres Strait Islander people do not use Auslan. In the NT alone, there are approximately 55 Aboriginal signing systems, with about eight most commonly used systems. Further, it can often be culturally impermissible to use these signing systems ‘away from country’, meaning deaf Indigenous people may be prevented from teaching community signs to outsiders.[23]
10.12 There was strong support for the ALRC’s proposal in the Discussion Paper that state and territory governments work with relevant Aboriginal and Torres Strait Islander organisations to map the need for additional interpreter services. Stakeholders—including many Aboriginal and Torres Strait Islander organisations—also identified existing gaps. The NT Anti-Discrimination Commissioner and the North Australian Aboriginal Justice Agency emphasised the need to monitor and evaluate the use of interpreter services through data collection.[24] The ALRC incorporated this suggestion into rec 10–1.
10.13 With regard to Aboriginal and Torres Strait Islander languages, many jurisdictions with high proportions of remote Aboriginal and Torres Strait Islander populations[25] such as Queensland, South Australia (SA), and Western Australia (WA) currently operate without state-funded dedicated interpreter services for Aboriginal and Torres Strait Islander people. Stakeholders agreed with the ALRC’s suggestion that the Aboriginal Interpreter Service (AIS) in the NT was a good model. The AIS is an interpreter service that provides assistance to Aboriginal and Torres Strait Islander defendants who face language barriers. The AIS has over 370 registered interpreters, with interpreter services for up to 100 languages and dialects. It offers a range of interpreting services to those involved in the criminal justice system, but also covers a broad range of other areas where interpreters may be required, for example, in health settings.[26] However, as highlighted by stakeholders, the gaps discussed below also apply to the NT (including the discussion around the need to fund additional interpreters).[27]
10.14 The failure to incorporate interpreters across all parts of the criminal justice system was also identified. A number of stakeholders stated, for example, that interpreters were not used during police interactions, when orders such as restraining orders or domestic violence orders were served, or when explaining bail conditions, bonds or warrants.[28] Stakeholders also emphasised the need to use interpreters in delivering prison programs.[29]
10.15 Australian Lawyers for Human Rights and Josephine Cashman suggested that the use of translation technologies or translated materials could increase the availability of interpreters in particular parts of the criminal justice system. Josephine Cashman recommended funding the AIS to review all court documents (eg, bail, domestic violence orders) and translate them into plain English and the most commonly spoken Aboriginal and Torres Strait Islander languages.[30] Australian Lawyers for Human Rights canvassed the possibility of developing electronic translation services to communicate matters such as bail conditions.[31] The NT Government noted that it commissioned the AIS to produce an app which translates the police caution into 18 common Aboriginal languages. The app is available on all police iPads.[32]
10.16 Stakeholders identified that effective access to interpreters also requires additional funding for interpreter services.[33] While noting that progress towards funding to increase the availability of interpreter services appears to already be ongoing,[34] the ALRC draws the Commonwealth Government’s attention to the Law Enforcement and Justice Services Inquiry’s recommendation to fund interpreters.[35]
10.17 The need for interpreters who are trained to a professional standard and able to interpret in legal contexts was also raised.[36] The International Commission of Jurists Victoria suggested that interpreter standards should be based on the following criteria, derived from the Canadian decision in R v Tran—continuity, precision, impartiality, competence and contemporaneousness.[37]
10.18 Stakeholders emphasised the need to provide training and guidance for police, judicial officers, court staff, corrections and others working within the criminal justice system.[38] On the question of ensuring effective access to interpreters, stakeholders submitted that training should focus on identifying when an interpreter is needed and how to interact with Aboriginal and Torres Strait Islander people through an interpreter.[39] Legal Aid NSW noted the existence in NSW of internal guidelines on matters such as conducting interviews in the presence of interpreters.[40]
10.19 More broadly, in order to ensure effective communication, the need for training covering cross cultural communication, cultural awareness and disability awareness was also canvassed. Cross cultural communication includes matters such as ‘gratuitous concurrence’ (which means agreeing to any and every proposition) and the possibility of being misunderstood because important body language cues are missed or not given their full significance by the listener.[41] Cultural awareness includes an understanding of kinship, the role of individuals within the community, the historical and ongoing impact of colonisation, intergenerational trauma, and ongoing contemporary experiences of Aboriginal and Torres Strait Islander peoples and communities.[42] Disability awareness refers to matters such as the prevalence of hearing loss and Foetal Alcohol Spectrum Disorder (FASD) among Aboriginal and Torres Strait Islander people. Legal Aid NSW noted, for example, that awareness of FASD requires an understanding that ‘sufferers of FASD may confess or agree to any statement due to high suggestibility and eagerness to please’.[43]
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[4]
Australian Institute of Aboriginal and Torres Strait Islander Studies, Indigenous Australian Languages (3 June 2015) <www.aiatsis.gov.au>.
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[5]
Senate Standing Committees on Finance and Public Administration, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 36–7. (the Law Enforcement and Justice Services Inquiry)
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[6]
Productivity Commission, Overcoming Indigenous Disadvantage: Key Indicators 2016—Report (2016) [5.24]. See also North Australian Aboriginal Justice Agency and Central Australian Aboriginal Legal Aid Service, Submission No 31 to Senate Standing Committee on Finance and Public Administration, Parliament of Australia, Inquiry into Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (7 May 2014).
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[7]
Productivity Commission, above n 6, [5.24].
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[8]
Kimberley Community Legal Services, Submission 80.
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[9]
Productivity Commission, above n 6, [5.23]–[5.24].
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[10]
M Schwartz and C Cunneen, ‘Working Cheaper, Working Harder: Inequity in Funding for Aboriginal and Torres Strait Islander Legal Services’ (2009) 7(10) Indigenous Law Bulletin 2.
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[11]
Senate Standing Committees on Finance and Public Administration, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 36.
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[12]
Senate Standing Committees on Community Affairs, Parliament of Australia, Hear Us: Inquiry into Hearing Health in Australia (2010) [8.74].
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[13]
Australian Hearing, Submission No 58 to House of Representatives Standing Committee on Health, Aged Care and Sport, Parliament of Australia, Inquiry into the Hearing Health and Wellbeing of Australia (December 2016).
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[14]
Dr D Howard and J Barney, Submission No 98 to House of Representatives Standing Committee on Health, Aged Care and Sport, Parliament of Australia, Inquiry into the Hearing Health and Wellbeing of Australia (February 2017).
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[15]
On a trial for a criminal offence, it is well established that the defendant should not only be physically present but should also be able to understand the proceedings and the nature of the evidence against him or her: Ebatarinja v Deland (1998) 194 CLR 444, [26].
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[16]
In the determination of any criminal charge against him, everyone shall be entitled to … be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14.
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[17]
Ebatarinja v Deland (1998) 194 CLR 444, [26]–[27].
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[18]
Dietrich v The Queen (1992) 177 CLR 292, 298 (Mason CJ and McHugh J).
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[19]
Jago v District Court (NSW) (1989) 168 CLR 23, 57 (Deane J).
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[20]
UN Convention on the Rights of Persons with Disabilities, Opened for Signature 30 March 2007, 999 UNTS 3 (Entered into Force 3 May 2008) art 13.
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[21]
L Bartels, ‘Police Interviews with Vulnerable Suspects’ (Research in Practice Report No 21, Australian Institute of Criminology, July 2011) 4.
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[22]
Ibid.
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[23]
Dr D Howard and J Barney, Submission No 98 to House of Representatives Standing Committee on Health, Aged Care and Sport, Parliament of Australia, Inquiry into the Hearing Health and Wellbeing of Australia (February 2017).
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[24]
See, eg, North Australian Aboriginal Justice Agency, Submission 113; Northern Territory Anti-Discrimination Commission, Submission 67.
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[25]
Judicial Council on Cultural Diversity, Cultural Diversity Within the Judicial Context: Existing Court Resources (2016) 8.
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[26]
Northern Territory Government, About the Aboriginal Interpreter Service <https://nt.gov.au>.
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[27]
See, eg, North Australian Aboriginal Justice Agency, Submission 113; Northern Territory Anti-Discrimination Commission, Submission 67.
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[28]
See, eg, North Australian Aboriginal Justice Agency, Submission 113; Legal Aid WA, Submission 33.
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[29]
See, eg, North Australian Aboriginal Justice Agency, Submission 113; Jesuit Social Services, Submission 100; Legal Aid WA, Submission 33.
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[30]
J Cashman, Submission 105.
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[31]
Australian Lawyers for Human Rights, Submission 59.
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[32]
Northern Territory Government, Submission 118.
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[33]
See, eg, North Australian Aboriginal Justice Agency, Submission 113; National Aboriginal and Torres Strait Islander Legal Services, Submission 109; Northern Territory Anti-Discrimination Commission, Submission 67; Legal Aid WA, Submission 33.
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[34]
In June 2017, the Australian government announced $1.6 million in further funding for the Indigenous Interpreting Project run by National Accreditation Authority for Translators and Interpreters: Senator the Hon Nigel Scullion, ‘Additional $1.6 Million for Indigenous Language Interpreters’ (Media Release, 16 June 2017). The project seeks to increase both the number of available languages and the number of qualified interpreters.
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[35]
Senate Standing Committees on Finance and Public Administration, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) rec 1.
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[36]
National Aboriginal and Torres Strait Islander Legal Services, Submission 109; J Cashman, Submission 105; Criminal Lawyers Association of the Northern Territory, Submission 75; International Commission of Jurists Victoria, Submission 54; Legal Aid WA, Submission 33.
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[37]
International Commission of Jurists Victoria, Submission 54.
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[38]
See, eg, National Aboriginal and Torres Strait Islander Legal Services, Submission 109; Legal Aid NSW, Submission 101; Northern Territory Office of the Public Guardian, Submission 72.
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[39]
See, eg, North Australian Aboriginal Justice Agency, Submission 113; National Aboriginal and Torres Strait Islander Legal Services, Submission 109; Judicial College of Victoria, Submission 102; Legal Aid NSW, Submission 101.
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[40]
Legal Aid NSW, Submission 101.
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[41]
See, eg, National Aboriginal and Torres Strait Islander Legal Services, Submission 109; Legal Aid NSW, Submission 101; Northern Territory Office of the Public Guardian, Submission 72. See also Productivity Commission, Access to Justice Arrangements—Volume 2 (2014) 763; Diana Eades, ‘Taking Evidence from Aboriginal Witnesses Speaking English—Some Sociolinguistic Considerations’ [2013] (126) Precedent 44, 45–47. (Access to Justice Inquiry)
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[42]
See, eg, Dr T Anthony, Submission 115; Legal Aid NSW, Submission 101.
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[43]
See, eg, Legal Aid NSW, Submission 101.