Interpreter services

Proposal 11–1           Where needed, state and territory governments should work with peak Aboriginal and Torres Strait Islander organisations to establish interpreter services within the criminal justice system.

11.6     The need for interpreter services within the criminal justice system for Aboriginal and Torres Strait Islander peoples—particularly defendants—has been well ventilated in previous reports.[1]

11.7     The ALRC is aware that hearing loss is prevalent among Aboriginal and Torres Strait Islander defendants[2] The proposal regarding interpreter services should be read to include sign interpreters where needed.

11.8     In preliminary consultations to this Inquiry, stakeholders reiterated the need for the expansion and adoption of the Northern Territory Aboriginal Interpreter Service (AIS) in some areas, which provides broad ranging interpreter services to Aboriginal and Torres Strait Islander peoples who come into contact with the criminal justice system.

Aboriginal and Torres Strait Islander languages

11.9     There are many Aboriginal and Torres Strait Islander languages spoken across Australia as first languages, primarily in regional and remote areas. 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.[3] For many people from isolated Aboriginal and Torres Strait Islander communities, English may be a second or third language.[4]

11.10  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.[5] 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.[6]

Impact on Aboriginal and Torres Strait Islander defendants

11.11  In 2016, the Productivity Commission reported that 38% of Aboriginal and Torres Strait Islander first language speakers experience difficulties when communicating with service providers.[7] 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’.[8] This can be pronounced in some areas. For instance, Wadeye, the largest Aboriginal and Torres Strait Islander community in the NT, has been identified as a place where ‘almost all’ individuals seeking legal advice require an interpreter.[9]

11.12  Gaps in interpreter services were identified as a key issue in Aboriginal and Torres Strait Islander peoples’ access to justice by the Senate Finance and Public Administration References Committee.[10] This issue is particularly acute in jurisdictions with high proportions of remote Aboriginal and Torres Strait Islander populations[11] that currently operate without interpreter services, such as Queensland, South Australia (SA) and Western Australia (WA). The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) submitted to the Senate Inquiry that

[c]entral to effective engagement and provision of quality services to Aboriginal and Torres Strait Islander peoples is effective communication. For a proportion of Aboriginal and Torres Strait Islander peoples, this will be unachievable without the assistance of an interpreter.[12]

11.13  To the same inquiry, the Chief Justice of the Supreme Court of Western Australia stated:

The law on that is clear. The process is not fair unless the accused person understands the language in which the process is being conducted and in significant areas of this state there are people who do not have an adequate command of English to understand court processes … [A]s a result of which a lot of the proceedings being conducted in our courts are invalid. The law on that is clear[13]

11.14  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.[14]

11.15  Barriers exist to the implementation of a network of interpreters in other states and territories, and in remote locations. The Senate Inquiry identified these to be:

  • the number of Aboriginal and Torres Strait Islander languages, particularly given some of these languages are only spoken by small groups and the limited availability of interpreters;

  • available interpreters may not be able to interpret at the professional level required for people facing criminal charges;

  • conflicts of interest, particularly for smaller Aboriginal and Torres Strait Islander language groups, where most or all of the speakers know each other and may be members of the same family or clan;[15]

  • the geographic remoteness and isolation of many predominantly Aboriginal and Torres Strait Islander language speaking communities;[16] and

  • issues relating to usage of Aboriginal English—‘gratuitous concurrence’ (agreeing to every proposition), being misunderstood because important body language cues are missed or not given their full significance by the listener, and that some English words have a different meaning in Aboriginal English.[17]

11.16  The ALRC welcomes submissions on the proposal that state and territory governments work with peak Aboriginal and Torres Strait Islander organisations to establish interpreter services. The ALRC considers that such services should be developed with Aboriginal and Torres Strait Islander communities if they are to meet the objective of providing culturally appropriate services. The ALRC notes that progress towards greater availability of interpreter services may already be underway—in June 2017, the Australian Government announced further resourcing for Aboriginal and Torres Strait Islander interpreter services.[18]

11.17  The ALRC notes that the AIS may provide a model for best practice, and invites submissions on the best way forward for other states and territories.

[1]             See, eg, Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 35; Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 5, 55; Senate Community Affairs Reference Committee, Parliament of Australia, Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia (2016) 108–9.

[2]             See, eg, Senate Community Affairs Reference Committee, Parliament of Australia, Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia (2016) [2.49]–[2.52].

[3]             Productivity Commission, Overcoming Indigenous Disadvantage: Key Indicators 2016—Report (Produced for the Steering Committee for the Review of Government Service Provision, 2016) [5.24].

[4]             Ibid 5.24; 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) 3.

[5]             Australian Institute of Aboriginal and Torres Strait Islander Studies, Indigenous Australian Languages <https://aiatsis.gov.au/explore/articles/indigenous-australian-languages>.

[6]             Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 36–7.

[7]             Productivity Commission, above n 3, [5.23]–[5.24].

[8]             Melanie Schwartz and Chris Cunneen, ‘Working Cheaper, Working Harder: Inequity in Funding for Aboriginal and Torres Strait Islander Legal Services’ (2009) 7(10) Indigenous Law Bulletin 2.

[9]             Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 36.

[10]           Ibid 26, 116, rec 1.

[11]           Judicial Council on Cultural Diversity, Cultural Diversity Within the Judicial Context: Existing Court Resources (2016) 8.

[12]           Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 35.

[13]           Ibid 36.

[14]           Northern Territory Government, About the Aboriginal Interpreter Service <www.nt.gov.au
/community/interpreting-and-translating-services>.

[15]           Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 37.

[16]           See also Productivity Commission, Access to Justice Arrangements—Volume 2 (2014) 764.

[17]           Ibid 763.

[18]           Indigenous Affairs, Department of Prime Minister and Cabinet, Minister Scullion: Additional $1.6m for Indigenous Language Interpreters <www.indigenous.gov.au/news-and-media/announcements>.