Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision: Report (html)

14. Auslan interpreters and jury service

Highly competent professional and ethical interpreters were able to effectively remove the communication barrier.^[1]—Observation from academics who ran a mock trial with a deaf juror

Overview

• This chapter considers the role of Auslan interpreters in facilitating jury service for people who are deaf. We start by addressing limitations in the Juries Act that might prevent their involvement in jury work.

• We also explore the training and certification requirements for Auslan interpreters who work in a court setting.

• Auslan interpreters who work with jurors should be required to complete additional training that specifically relates to jury work and sign up to standards and a code of conduct.

• They should provide an oath or affirmation to the court regarding their duty to the court and obligation to maintain the confidentiality of jury deliberations.

• Penalties should apply for breach of duties and are discussed in the next chapter.

The role of an Auslan interpreter

14.1 Auslan interpreters will facilitate communication between a deaf juror and the other people involved in a trial, including the judge, lawyers, accused, parties, witnesses and other jurors. To do this, Auslan interpreters will interpret everything that is said in English into Auslan, and anything that is signed in Auslan into English. 

Ability to communicate in English

14.2 Schedule 2(3) of the Juries Act 2000 (Vic) renders certain people ineligible for jury service, including a person who:

(a) has a physical disability that renders the person incapable of performing the duties of jury service

(f) is unable to communicate in or understand the English language adequately

14.3 In Chapter 11 we recommended that schedule 2(3)(a) should not apply if the court determines that reasonable adjustments could be provided to enable a person who is deaf, hard of hearing, blind or has low vision to perform jury duty.

14.4 Schedule 2(3)(f) should also be amended to reflect that a deaf juror using an Auslan interpreter, who may not be able to communicate in English but can understand it, is nonetheless competent to serve on a jury. This change was supported in submissions by Associate Professors Bruce Baer Arnold and Wendy Bonython, the Law Institute of Victoria (LIV), and Madison.^[2]

14.5 The ability to understand or communicate in English is fundamental to being a juror. County Court consultees stressed that ‘English is the language of the Court’ and that ‘any juror needs to be fluent in the language of the court’.^[3] As they put it, ‘Any person regardless of disability, should not serve if they cannot understand English. […] This is a screening test for jury selection’.^[4] In practice, a deaf juror is likely to be given trial transcripts in English, and a blind juror will be given voice recordings in English.

14.6 The Commission is aware that deaf people ‘have a variety of literacy and life experiences just like the broader community’.^[5] In Chapter 3 we noted that some people who are deaf do not understand English or Auslan and may work with Deaf Interpreters to communicate with others.^[6]

14.7 This inquiry does not consider whether people who do not understand English should be allowed to serve. That question is out of scope for us (see Chapter 1 and our terms of reference).

14.8 We note that in New Zealand sign language is recognised as an official language and there is a legal right to use New Zealand Sign Language in legal proceedings.^[7] However, the New Zealand Juries Act still enables a judge to cancel a summons if satisfied that the person cannot perform their role effectively as a juror because of disability or because they cannot understand or communicate in English.^[8]

14.9 Because there are different levels of English skills in the deaf community,^[9] any information about serving on a jury provided by Juries Victoria and the courts should make it clear that a good grasp of English is still required.

Recommended National Standards for Working with Interpreters in Courts and Tribunals

14.10 In Chapter 9 we referred to the Recommended National Standards for Working with Interpreters in Courts and Tribunals (RNS) that apply to Auslan interpreters in court. The RNS provide a guide for the courts, judicial officers, interpreters and legal practitioners when providing interpretation in a court setting. They cover practical things like:

• the provision of information to the public about the availability of interpreters

• training for judicial officers and court staff about the role of an interpreter, assessing the need for an interpreter and how to work with an interpreter

• the need for adequate funding of interpreting services

• coordinating the engagement of interpreters, booking systems and notice for bookings

• support for interpreters—working conditions, remuneration, work space, line of sight, breaks, debriefing and counselling, creating opportunities for feedback

• engaging qualified interpreters

• the provision of induction and training for interpreters.^[10]

14.11 The RNS have informed the Commission’s recommendations for Auslan interpreters. The standards should be consulted by the courts and Juries Victoria when developing practice standards and training material for Auslan interpreters working with jurors.

14.12 Professional development training on the RNS should be provided by the Judicial College of Victoria to encourage judges to be familiar with them and use them.^[11]

Auslan interpreters should work in tandem for jury work

14.13 Tandem interpreting involves ‘interpreters working in rotation at agreed intervals in order to avoid fatigue over extended periods of time’.^[12] Auslan interpreting happens almost simultaneously with that which is spoken. Tandem interpreting avoids the risk of occupational injury.^[13] This approach is standard practice in international courts, as it has been for Auslan interpreters in Australia for many years.^[14]

14.14 The RNS explain the benefits of working in tandem in a court setting:

1) Courts can expect to at least double the speed of proceedings if they employ a team working in tandem.

2) Having two interpreters helping each other and checking on each other’s performance is also an effective quality assurance mechanism.^[15]

14.15 Juries Victoria should consider whether a third Auslan interpreter might be needed for a longer trial to avoid fatigue or to assist a juror during breaks (discussed below).^[16]

Auslan interpreters should be independent

14.16 It is important that Auslan interpreters are independent of the person from the subject groups. Independence is recommended in the RNS:

Lack of impartiality may lead to unfaithful renditions, as the interpreter may filter information to protect the witness, or may improperly use information for personal gain. This may work to the disadvantage of either party, depending on whether or not the court recognises what has occurred. Similarly, while interpreters may be asked to explain their interpreting choices, interpreters cannot be asked to give their own evidence as witnesses relating to the interpreting task which has been undertaken: they must remain impartial. ^[17]

14.17 We understand that independence will be a requirement for British Sign Language (BSL) interpreters in England and Wales now that new legislation has been passed to allow them in the jury room. We have been told by Her Majesty’s Courts and Tribunal Service (HMCTS) that all interpreters will be supplied by the Ministry of Justice’s contracted language service provider, and registered with the National Register of Communication Professionals Working with Deaf and Disabled People, or bodies with equivalent suitable experience.^[18] All BSL interpreters will have to meet Ministry of Justice contractual requirements, which include a clearly defined list of qualifications, skills, experience and vetting requirements. In addition, as is the current practice, BSL interpreters will be regularly assessed by the quality assurance provider.^[19] HMCTS has suggested ‘if for any reason, an interpreter fails to reach the required standard, they will be removed from the register and cannot be re-engaged in this capacity until they have satisfactorily completed another assessment’.^[20]

14.18 It is important that all parties understand that interpreting is independent and impartial. The RNS suggests some strategies to assure everyone present that interpreting will occur impartially, for example:

• establishing an interpreting team to reduce fatigue and cross-check each other’s renditions

• employing an interpreter from interstate or overseas.^[21]

14.19 The RNS acknowledge that it can be difficult to obtain complete independence in some circumstances, such as:

there are limited numbers of qualified interpreters in a particular language or dialect … In such cases, the court should take extra steps to satisfy itself that the arrangement is acceptable to the court and to the parties, and should closely monitor the situation.^[22]

14.20 It is important that interpreters have the appropriate training and qualifications to effectively interpret for the juror. As noted by Alastair McEwin:

a deaf person may want their own interpreter or captioner. However, it is important to ensure that everyone gets the same level of information and quality of access. An interpreter might be known to a deaf person, but they might not be qualified to interpret in court, so they might not be the best person for that job.^[23]

14.21 Service providers often allow deaf people to nominate preferred Auslan interpreters and to specify interpreters they do not want to work with. If possible, this should continue. Ultimately, however, the scheduling needs of the Court and Juries Victoria should overrule any personal preferences. If this means that a person is uncomfortable serving, then that person could apply to have their service deferred. If deferred, the preferred Auslan interpreter might be available at a later date. However, in Chapter 11 we recommend that the new own motion power for the Juries Commissioner to defer service for people in the subject groups should be used sparingly, so there are no guarantees that a particular interpreter would be available. It would be for the Juries Commissioner to determine if a person could be excused from jury service in this situation.

Interpretation should happen over lunch breaks

14.22 Recent academic research identified that isolation is a concern for deaf jurors in the United States. Professor Napier and colleagues observed in a case study that ‘the interpreter asserted that she needed the time to rest during breaks as she was working all day on her own. This meant that the deaf juror does not interact with the other jurors at all’.^[24]

A deaf juror commented:

As a deaf juror it was a huge positive to have an interpreter, but the huge negative was the behaviour of interpreters (eg refusing to go into the deliberation room on breaks so [the] deaf juror couldn’t get to know the other jurors). The interpreter established their role boundaries that were too extreme.^[25]

14.23 Similarly, in relation to the mock trial in New South Wales (discussed in Chapter 9) it was observed that:

The deaf juror who was selected to go into the deliberation room reported that they enjoyed the experience of sitting on a jury, however they expressed concern about being left alone at lunchtime. (This also happens in the US). Without an interpreter at break times the deaf juror felt isolated and excluded from forming a bond with the other jurors, which is essential to support jury deliberations. They would have liked to have been more involved in the conversations that occurred over break times. Instead, the juror relied on asking people to write questions down on paper. This is something the Commission should consider.^[26]

14.24 Given these concerns, interpreters should be available to interpret over lunch breaks. This would also ensure that people using Auslan interpreters can participate in jury duty on an equal basis with others.^[27] This may mean that an additional interpreter needs to be hired for that purpose.

Training and certification requirements for Auslan interpreters

14.25 Auslan interpreters are highly trained professionals and the industry is extensively regulated. To become a professional Auslan interpreter, an individual must be certified by the National Accreditation Authority for Translators and Interpreters (NAATI).^[28] Further, Auslan interpreters must undertake regular professional development training to maintain their certification.^[29]

14.26 NAATI advised the Commission that the certification eligibility criteria (required to become eligible to sit a certification test) are as follows:

• minimum training/qualification: Diploma of Interpreting^[30] or Advanced Diploma of Interpreting^[31] from RMIT^[32]

– The Diploma is equivalent to six months of full-time study (eligibility requirement to sit the Certified Provisional Interpreter (CPI) test)

– The Advanced Diploma is equivalent to one year of full-time study (eligibility requirement to sit the Certified Interpreter (CI) test, which is at a higher level)

• ethical competency test: testing the person’s knowledge of the professional code of conduct and standards

• cultural competency test: testing the person’s social awareness and cultural awareness (of deaf people)

• demonstrated proficiency in English.^[33]

14.27 The last three elements are built into the RMIT course, so if a person has completed that course, they do not need to complete the ethical or cultural competency tests, or the proficiency in English test separately.^[34]

14.28 Once the applicant has demonstrated that they fulfil the eligibility criteria, they can then undertake a NAATI certification test. They will sit for either the CPI level or CI level test, depending on their training and experience. These are skills-based tests consisting of several interpreting tasks including live scenarios with role play. The test is undertaken in Melbourne (for Victorian candidates) and is recorded on video. If the applicant passes the relevant test, they will qualify as either a CPI or a CI.^[35]

14.29 Auslan interpreters need to recertify every three years. To recertify, a person must demonstrate they have completed 120 points of professional development (PD) points in four categories:

1) skill development and knowledge

2) industry engagement

3) ethics

4) maintenance of language.^[36]

What qualifications do Auslan interpreters need to work in a court setting?

14.30 The Australian Sign Language Interpreters Association (ASLIA) and other Auslan interpreter associations advised the Commission that Auslan interpreters who currently undertake work in the courts (for example to interpret for the accused or witnesses) are generally at the certified level (CI). Sometimes a lower accreditation (CPI) may be used in remote areas or in the Magistrates’ Court if a CI level interpreter is not available (see discussion of availability issues below).^[37]

14.31 NAATI has now introduced a new specialist certification level: Certified Specialist Legal Interpreter (CSLI).^[38] These are:

experienced and accomplished interpreters who are experts in interpreting in the legal domain. They have completed training and undertake continuous professional development in specialist legal interpreting.^[39]

14.32 To qualify, the candidate must pass a practical interpreting test and a knowledge interpreting test with seven key sections:

• legal terminology and general legal knowledge

• legal systems and processes

• ethics and the law

• culture and the law

• the role of an interpreter in legal contexts

• advanced interactional management

• research and preparation.^[40]

14.33 The CSLI would already hold a CI certification. This specialisation builds on those skills through additional training.^[41]

Additional training for Auslan interpreters working with jurors

Qualification requirements

14.34 Interpreters for jurors should, at minimum, be at the CI level. However, when sufficient time has passed for Auslan interpreters to attain CSLI level, this specialised certification should be required.

14.35 Della Goswell told us that quality is just as important as the number of years of experience.^[42] Anyone undertaking the new NAATI training pathway will be capable of undertaking this work without extensive practical experience. For that reason, we do not recommend a mandated minimum number of years of experience for Auslan interpreters for jurors.

14.36 When court interpreters are booked through a service provider, sometimes an interpreter with more experience is paired to mentor a more junior interpreter.^[43] The Commission thinks this is sensible and should continue.

Training for the specific role of working with jurors

14.37 Auslan interpreters assisting jurors should undertake a professional development unit to prepare them for jury work.

14.38 The need for additional jury-specific training was supported by most consultation participants.^[44] This type of work is unique. It occurs behind closed doors with fewer opportunities to ask questions (unlike interpreting for a medical appointment, for example, where the interpreter can request clarifications if needed).^[45] ASLIA commented:

Interpreters need to have in-depth linguistic and cultural knowledge, as well as solid legal knowledge. It usually takes years of experience to develop sufficient knowledge of the legal system, in addition to further study in the area.^[46]

14.39 In their recent study of deaf jurors in Monroe County, New York State, Professor Napier and colleagues emphasised the importance of specialised training for jury work. The researchers identified that this was a theme that ‘spanned judges, lawyers, court administrators and deaf consumers’.^[47]

14.40 The Commission acknowledges that the court setting poses challenges for Auslan interpreters as it does for other interpreters. Della Goswell referred to some of the complexities that can arise in a general court context where witnesses and parties use Auslan interpreters. Some examples she referred to included:^[48]

• Barristers sometimes use double negatives in questioning. Because Auslan presents visual actions, interpreters have to translate these negative actions into positive actions.

• Barristers sometimes ask questions that have several parts. Interpreters need to ask for questions to be presented one at a time, or to clearly signal that the deaf person’s response is to one part of a question only.

• It can be difficult to translate an action or spatial relationship into Auslan.^[49]

14.41 Goswell also noted that continuity of communication choices among Auslan interpreters is important. Sometimes a new interpreter will use a different sign variant or representation of something that has been discussed and established previously, causing confusion.^[50]

14.42 Because of the extensive training and certification requirements that already exist for Auslan interpreters, the Commission does not believe that additional training for this role should be onerous. Auslan interpreters for jurors will need to understand the unique characteristics of the role, including:

• knowledge of court processes

• understanding legal language

• understanding their duties to the court

• only answering questions asked of the juror

• anticipating what might happen in a deliberation process (such as what happens at lunch)

• what to do if the Auslan interpreter has questions about the process or is concerned that the juror is not understanding

• what to do if the juror (or another juror) asks them questions about the trial or tries to discuss the verdict with the interpreter.

14.43 Training should also cover the role of a foreperson as a conduit between the interpreter and judge, for issues arising other than in court. The interpreter and the juror should be aware of the role of the foreperson if either of them have questions for the judge.^[51]

14.44 The specific content of additional training should be developed by Juries Victoria and the courts in consultation with ASLIA and academics who have existing experience in this area.^[52] It would be helpful for NAATI to add a training module about the new role to its new legal specialisation course. NAATI suggested that it would consider this.^[53]

Standards for Auslan interpreters working with jurors

14.45 The RNS specify that interpreters are ‘officers of the court’. They must be accurate and impartial and these obligations ‘override any duty that person may have to any party to the proceedings’.^[54]

14.46 The ACT Sheriff advised the Commission that the ACT Supreme Court has developed a number of documents to be used to familiarise Auslan interpreters and support persons with their roles. Those documents include a one-page list of ‘standards required by interpreters’, induction information and a court interpreters’ code of conduct.^[55]

14.47 The ACT Sheriff plans to send a copy of the standards and code of conduct to the Auslan interpreter before they are to attend court, and require the Auslan interpreter to sign and return the documents before their induction. Induction is likely to occur on the first day of attendance at court, but we were told that the timing of this will depend on the supports that are required.^[56]

14.48 The ACT standards document for interpreters includes information about punctuality, dress, remuneration, breaks, providing feedback, working in tandem, as well as duties and obligations to:

• Diligently and impartially interpret communication in connection with a court proceeding as accurately and completely as possible

• Diligently interpret communication between jurors as accurately and completely as possible and not add or include your opinion or beliefs

• Comply with all directions of the Court

• Alert the Judge if you become aware of a conflict of interest

• Requests for repetition, clarification and explanation should be addressed to the Judge only

• If you need to correct a mistake, address the Judge only

• If you recognise a potential cross–cultural misunderstanding, or comprehension or cognitive difficulties on the part of the person who you are interpreting for you should seek leave from the Judge to raise the issue

• You must keep confidential all information acquired, in any form whatsoever, in the course of your engagement or appointment unless that information is or comes into the public domain. This is particularly in relation to jury deliberations. Under no circumstances can jury deliberations be revealed.

• You are not to take part in discussions between jurors (except to interpret).

• You are not to convey your belief, opinion or have a say in the decision of the jury.^[57]

14.49 Similar standards should be developed and provided by Juries Victoria to the Auslan interpreter when a booking is made for their services. Juries Victoria should also contemplate preparing short induction material for Auslan interpreters.

14.50 HMCTS advises that it will provide information to the interpreter about their role and responsibilities in the contract, code of conduct and confidentiality agreements they enter into with the contracted suppliers.^[58] Juries Victoria could perhaps provide an induction briefing to a group of Auslan interpreters who are likely to do jury work in the future.

A new code of conduct for Auslan interpreters

Auslan interpreters are already subject to a code of ethics

14.51 To hold a NAATI certification (usually necessary to be employed as an interpreter), Auslan interpreters must abide by the Australian Institute of Interpreters and Translators (AUSIT) Code of Ethics and Guidelines for Professional Conduct (Code of Ethics) and the Australian Sign Language Interpreters Association (ASLIA) Code of Ethics.^[59]

14.52 The RNS also require interpreters working in a court setting to ‘familiarise themselves with their responsibilities under the Court Interpreters’ Code of Conduct [which is based on the AUSIT code] and be prepared to swear or affirm that they will adhere to that Code’.^[60]

A separate code of conduct for jury work

14.53 In the Australian Capital Territory (ACT), Auslan interpreters working with jurors will also be required to agree to comply with a code of conduct. The ACT court interpreters’ code of conduct is short (two pages) and covers:

• the general duty to the court

• duty to comply with directions

• duty of accuracy

• duty of impartiality

• duty of competence

• confidentiality.^[61]

14.54 Despite existing requirements, the Commission thinks it is important to require an Auslan interpreter to sign up to a separate code of conduct in relation to jury work that outlines their role and responsibilities. The courts should develop this code which could be guided by the ACT code and the court interpreters’ code of conduct set out in the RNS. Amendments to the Juries Act should be accompanied by regulation that includes accreditation requirements, standards, and a code of conduct for Auslan interpreters.

14.55 A code of conduct, new standards and an oath to the court should be sufficient to respond to concerns raised by the LIV:

In many instances, LIV members have reported their experiences with interpreters in a range of professional settings are that they can stray beyond the confines of their role; venture into providing legal advice, not accurately convey what is being said or needlessly elaborate on statements. Whilst specific training may not be the best way to address this, the LIV recommends part of the affirmation require a pledge to honestly, objectively and accurately interpret to the best of their abilities. Additionally, a fact sheet should be provided to interpreters/supporters and the Judge should reinforce the importance of their role and adhering to their affirmation and the guidance of the fact sheet.^[62]

Auslan interpreters should provide an oath or affirmation to
the court

14.56 Auslan interpreters should provide an oath to the court to perform their duties responsibly and to maintain confidentiality. This is a straightforward exercise. It would directly respond to the High Court decision in Lyons, which upheld the 13th person rule and identified that its conclusion was ‘reinforced by the absence of provision to administer an oath to an interpreter assisting a juror’.^[63]

14.57 The New South Wales Law Reform Commission and the Australian Law Reform Commission have suggested oaths be taken by ‘communication assistants’, including Auslan interpreters, and stenographers, to ensure confidentiality.^[64]

14.58 Interpreters working in a court setting would already be familiar with providing an oath to the court, which is required in hearings or in any proceedings where evidence is being interpreted.^[65]

The community supports the provision of an oath

14.59 The Supreme Court and the County Court both supported an oath/affirmation being made by an Auslan interpreter assisting a deaf juror.^[66] Juries Victoria, the Office of Public Prosecutions, the Victorian Criminal Bar Association, the Law Institute of Victoria and Victoria Legal Aid also supported interpreters taking an oath and being subject to relevant offences for breaches of the oath.^[67]

14.60 The Commission heard from expert Auslan interpreting organisations that referred to the existing codes of ethics, which include a requirement to maintain confidentiality.^[68] For example, NAATI noted:

Confidentiality and impartiality are two of the key pillars of both AUSIT and ASLIA’s codes of ethics, and, accordingly, of NAATI certification. It is part of prerequisite training/test to learn the details of this code. There is also a minimum amount of professional development that needs to be undertaken regarding ethics for interpreters.^[69]

14.61 In light of these existing codes of ethics, the expert bodies indicated that an oath was probably unnecessary. However, they did not object to interpreters providing an oath or affirmation if that ensured confidence in the justice system.^[70]

14.62 Similarly, Professor Jemina Napier, Professor Sandra Hale and Associate Professor Mehera San Roque told the Commission that:

On the one hand, a properly trained interpreter would already be professionally required (incorporated into NAATI certification and national standards) to maintain confidentiality and remain impartial. However, there is some benefit for the interpreter and the Court in providing an oath to interpret for jurors because it sets a scene which builds confidence in the interpreter’s abilities and role. It would also allay the fears of the public/legal profession about the interpreter.^[71]

14.63 A Deaf Victoria consultation participant told us that:

An Auslan interpreter isn’t really a person in the jury room, instead they should be viewed as an access tool. To ensure confidence in the participation of the interpreter an oath should be provided by an interpreter before jury deliberations. Taking an oath is important to ensure that the jury’s decision won’t be challenged on the basis of confidentiality or impartiality.^[72]

14.64 The County Court told us:

jurors may begin discussing the matter from a very early stage. Therefore, the oath or affirmation ought to be administered at the outset by the judge. That is, when the jury are ready to be empanelled (whether that be when the jury is brought into the courtroom or by audio visual link). A further oath may be required before the jurors retire to consider their verdict. Oaths and affirmations would be required for any new support persons who are brought into the trial to assist.^[73]

14.65 Peter Ward noted that his concerns about limiting the 13th person rule could be allayed if an Auslan interpreter were required to swear an oath/affirmation to maintain confidentiality and not get involved in deliberations.^[74]

Oaths in other jurisdictions

14.66 An oath or affirmation is already required of interpreters and support people who assist jurors in the United States and New Zealand.^[75] In Monroe County, New York State, the oath provided by an interpreter working with a deliberating juror is:

Do you swear that you shall interpret well and truly between members of the jury, to the best of your ability during these deliberations, you shall not offer your own opinions or comments, nor speak to them in any manner, unless to convey the contents of the jurors’ deliberations, So help you God.^[76]

14.67 In England and Wales, BSL interpreters who work with jurors will be contractually bound to a confidentiality agreement which will stipulate their obligation to always remain impartial and they will be required to swear an oath to that effect.^[77]

14.68 The wording of the legislation in either the ACT or the United States, or a combination of both, would be appropriate for Victoria. In the ACT, the oaths/affirmations require that an undertaking be given to the court to:

well and truly interpret the proceedings and the jury’s deliberations and that I will not otherwise participate in the jury’s deliberations or disclose anything about those deliberations, except as allowed or required by law.^[78]

14.69 The oath in the ACT encompasses ‘proceedings’ and ‘deliberations’. The Commission recommends that one oath is made early on in the jury selection process and is the subject of reminders at various later stages in the process. If any additional interpreters are involved in proceedings later on, they can be sworn in when they start.

Addressing the shortage of Auslan interpreters in the courts

14.70 Several factors make it difficult to plan for the provision of Auslan interpreters for jury service:

• There is a shortage of Auslan interpreters qualified to work in a court context.

• It is very difficult to predict the duration of the Auslan booking because cases may settle, or other unforeseen delays may occur.

• It is impossible to know if interpreters will ultimately be needed for a trial.

14.71 Issues are compounded in regional areas because interpreters mainly travel from metropolitan Melbourne.

Not many Auslan interpreters do court work

14.72 Not many Auslan interpreters work in the courts.^[79] Those who do, often have five to ten years of experience.^[80] AUSIT told us that:

Less people work in the higher courts. There are probably less than 20 Auslan interpreters available to work on more complex legal matters.

Sometimes Auslan interpreters are flown in from interstate for complex legal matters. This might occur if one Auslan interpreter has done lots of work in the lower courts on a matter and new interpreters are preferred for the higher court work.^[81]

14.73 We note that the Victorian Government has recently announced fee-free TAFE courses for Auslan interpreting.^[82] While it will take some time for Auslan interpreters to gain the required level of experience for court work, this is a positive step to address the shortage of Auslan interpreters.

14.74 We understand that one of the factors contributing to the current shortage is that Auslan interpreters are paid the same amount for complex legal court work as they are for simpler work. Therefore, there is a lack of incentive for interpreters to specialise in court work. We have heard that often people who do this work do so because they are motivated by social justice principles.^[83]

14.75 To address the shortage of Auslan interpreters, the Commission recommends that the courts and Juries Victoria remunerate Auslan interpreters who do jury work at a rate that recognises the extra skills and training required for this specialised work.

Unpredictability of court timing and the need for consistency of interpreters

14.76 It is difficult to know how long an Auslan interpreter will be needed for. Juries Victoria and Brent Philips noted that this creates challenges for Auslan service providers and for interpreters in planning their work schedules.^[84]

14.77 Brent Phillips commented that:

Another logistical issue is that it is difficult to anticipate how long an interpreter might be needed for jury work. It might be useful for the court to have a pool of interpreters on hand to call upon.

It would be worth obtaining data from Court Services Victoria about how many Auslan interpreters are booked for court work and how often to see if there is scope for the courts to have interpreters employed full time? If you added up all the Auslan requirements, would it amount to a full-time position (or a few positions)?^[85]

14.78 Another complicating factor is the need for consistency in Auslan interpreters. It has been suggested that it is better if the same interpreters are employed for the duration of a trial. Della Goswell advised that:

Consistency is important in a trial and in deliberation. There is a co-creation of knowledge and style that is developed and that is important to maintain for comprehension. We were told that when you swap someone over, there is a loss of style and background information which jeopardises clarity.^[86]

14.79 Brent Phillips told us:

It might be useful to have consistency in Auslan interpreters in a trial because interpreters will come to know the names of the parties involved in the case, issues, terminology etc. This might be difficult if there are shortages of interpreters available and you have to be careful about burn out. Because the deaf community is small and there are not many interpreters working in the courts, there may be an issue where the parties or prospective juror knows the Auslan interpreter (eg they are cousins or friends etc.) and does not want them to translate.^[87]

The need to book early

14.80 Expression Australia made some observations about how Auslan interpreters are booked for court work. It noted that there seems to be a lack of awareness about shortages in supply and bookings are often made at the last minute, when it is too late. This impacts access for deaf people.^[88]

14.81 While nothing can be done to provide more certainty about whether a person will be selected for jury duty or how long the trial will last, it is important that Juries Victoria books Auslan interpreters for jury work under the proposed new laws as early as possible.

Keeping records of Auslan bookings

14.82 Records should be kept about the number of bookings made each year and for how long. This will assist the court to determine if it would be more efficient to consider employing an in-house Auslan interpreter/s for this work.

14.83 We note that in Monroe County, New York State, sign language interpreters are used almost weekly for jury duty and are usually hired through external service providers, as needed. The Jury Commissioner has one part-time in-house sign language interpreter.^[89]

Surveying staff

14.84 It may assist if the Department of Justice and Community Safety, the courts and Juries Victoria survey staff to ascertain if any of them have Auslan qualifications at the court interpreting level. If so, they could be seconded to assist with training or pre-empanelment court visits or the occasional trial.

1. Conclusion reached from the mock trial study conducted in 2014: Sandra Hale et al, ‘Deaf Citizens as Jurors in Australian Courts: Participating via Professional Interpreters’ (2017) 24(2) International Journal of Speech Language and the Law 151, 170.

   ↑

2. Submissions 4 (Associate Professors Bruce Baer Arnold (University of Canberra) and Wendy Bonython (Bond University)), 7 (Law Institute of Victoria), 9 (Madison).

   ↑

3. Consultation 9 (Consultation with two Victorian County Court Judges, Court policy staff and two Associates).

   ↑

4. Ibid.

   ↑

5. Consultation 8 (Brent Phillips).

   ↑

6. William Hewitt, Court Interpretation: Model Guides for the Policy and Practice in the State Courts (Report No 167, National Center for State Courts, 1995) 161. See also Office for Disability Issues, ‘Some Differences in Deaf People Using Interpreters’, New Zealand Office for Disability Issues (Web Page) <https://www.odi.govt.nz/nzsl/tools-and-resources/some-differences-in-deaf-people-using-interpreters/>. See Chapter 3.

   ↑

7. Sign Language Act 2006 (NZ) ss 6, 7. Note that the right in section 7 enables New Zealand Sign Language to be used—if it is their first or preferred language—by any member of the court, any party or witness, any counsel, and any other person with leave of the presiding officer.

   ↑

8. Juries Act 1981 (NZ) s 16AA.

   ↑

9. Consultation 8 (Brent Phillips).

   ↑

10. Judicial Council on Cultural Diversity, Recommended National Standards for Working with Interpreters in Courts and Tribunals (Report, Second Edition, March 2022).

    ↑

11. The Judicial College of Victoria has information about the RNS on its website: ‘Recommended National Standards for Working with Interpreters in Courts and Tribunals’, Judicial College of Victoria (Web Page, 28 April 2022) <https://www.judicialcollege.vic.edu.au/news/recommended-national-standards-working-interpreters-courts-and-tribunals>.

    ↑

12. Judicial Council on Cultural Diversity, Recommended National Standards for Working with Interpreters in Courts and Tribunals (Report, Second Edition, March 2022) 88.

    ↑

13. Ibid 16, Standard 8 [8.5].

    ↑

14. Ibid 45.

    ↑

15. Ibid.

    ↑

16. Consultation 5 (Expression Australia). Also Consultations 6 (Deaf Victoria and community participants), 3 (Academics: Professor Jemina Napier (Heriot-Watt University), Professor Sandra Hale (University of New South Wales), Associate Professor Mehera San Roque (University of New South Wales)).

    ↑

17. Judicial Council on Cultural Diversity, Recommended National Standards for Working with Interpreters in Courts and Tribunals (Report, Second Edition, March 2022) 59.

    ↑

18. Information provided by Her Majesty’s Courts and Tribunals Service to Victorian Law Reform Commission, 2 September 2021.

    ↑

19. Ibid.

    ↑

20. Ibid.

    ↑

21. Judicial Council on Cultural Diversity, Recommended National Standards for Working with Interpreters in Courts and Tribunals (Report, Second Edition, March 2022) 60 <https://jccd.org.au/publications/>.

    ↑

22. Ibid 59.

    ↑

23. Consultation 24 (Alastair McEwin AM, Royal Commissioner, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, in his personal capacity).

    ↑

24. Jemina Napier et al, ‘Training Legal Interpreters to Work with Deaf Jurors’ in Jeremy L Brunson (ed), Legal Interpreting—Teaching, Research and Practice (Gallaudet University Press, 2022) 267.

    ↑

25. Ibid.

    ↑

26. Consultation 3 (Academics: Professor Jemina Napier (Heriot-Watt University), Professor Sandra Hale (University of New South Wales), Associate Professor Mehera San Roque (University of New South Wales)). Also Consultation 19 (Australian Institute of Interpreters and Translators (AUSIT)).

    ↑

27. This is in line with the spirit of the Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 1.

    ↑

28. National Accreditation Authority for Translators and Interpreters, ‘How Do I Become a Translator or Interpreter?’, NAATI (Web Page, 2021) <https://www.naati.com.au/become-certified/how-do-i-become-certified/>. See also National Accreditation Authority for Translators and Interpreters, NAATI (Web Page) <https://www.naati.com.au/>.

    ↑

29. Consultations 13 (National Accreditation Authority for Translators and Interpreters (NAATI)), 18 (Australian Sign Language Interpreters’ Association, Victoria and Tasmania (ASLIA)).

    ↑

30. ‘Diploma of Interpreting (LOTE-English) PSP50916’, RMIT University (Web Page, 2020) <https://www.rmit.edu.au/study-with-us/levels-of-study/vocational-study/diplomas/diploma-of-interpreting-loteenglish-c5364>.

    ↑

31. ‘Advanced Diploma of Interpreting (LOTE-English)’, RMIT University (Web Page) <https://www.rmit.edu.au/study-with-us/levels-of-study/vocational-study/advanced-diplomas/advanced-diploma-of-interpreting-loteenglish-c6154.html>.

    ↑

32. RMIT has the only university course in Victoria currently endorsed by NAATI (for Auslan): Consultation 13 (National Accreditation Authority for Translators and Interpreters (NAATI)).

    ↑

33. Ibid.

    ↑

34. Ibid.

    ↑

35. Ibid.

    ↑

36. Consultation 18 (Australian Sign Language Interpreters’ Association, Victoria and Tasmania (ASLIA)); National Accreditation Authority for Translators and Interpreters, NAATI Recertification Professional Development Catalogue (Guide, 2018).

    ↑

37. Consultations 18 (Australian Sign Language Interpreters’ Association, Victoria and Tasmania (ASLIA)), 19 (Australian Institute of Interpreters and Translators (AUSIT)).

    ↑

38. National Accreditation Authority for Translators and Interpreters, ‘Certified Specialist Legal Interpreter’, NAATI (Web Page, 2021) <https://www.naati.com.au/become-certified/certification/certified-specialist-legal-interpreter/>.

    ↑

39. ‘Auslan Certified Specialist Legal Interpreter’, NAATI National Accreditation Authority for Translators and Interpreters (Web Page) <https://www.naati.com.au/become-certified/certification/auslan-certified-specialist-legal-interpreter/>.

    ↑

40. Consultation 13 (National Accreditation Authority for Translators and Interpreters (NAATI)).

    ↑

41. Ibid.

    ↑

42. Consultation 21 (Della Goswell, Lecturer, Convenor Auslan-English Interpreting Program, Macquarie University, NSW).

    ↑

43. Consultations 5 (Expression Australia), 21 (Della Goswell, Lecturer, Convenor Auslan-English Interpreting Program, Macquarie University, NSW).

    ↑

44. Consultations 2 (Law Institute of Victoria), 16 (Office of Public Prosecutions Victoria), 21 (Della Goswell, Lecturer, Convenor Auslan-English Interpreting Program, Macquarie University, NSW).

    ↑

45. Consultation 18 (Australian Sign Language Interpreters’ Association, Victoria and Tasmania (ASLIA)).

    ↑

46. Ibid.

    ↑

47. Jemina Napier et al, ‘Training Legal Interpreters to Work with Deaf Jurors’ in Jeremy L Brunson (ed), Legal Interpreting—Teaching, Research and Practice (Gallaudet University Press, 2022) 267.

    ↑

48. Consultation 21 (Della Goswell, Lecturer, Convenor Auslan-English Interpreting Program, Macquarie University, NSW).

    ↑

49. Ibid.

    ↑

50. Ibid.

    ↑

51. We acknowledge that there may be situations where the person from the subject groups is themselves nominated as foreperson. In Chapter 10 we discuss two examples of deaf jurors who were nominated as forepersons in the trials on which they served; one in England and one in New Zealand.

    ↑

52. See for example recent research that provides recommendations about professional development training for interpreters working with deaf jurors in Napier et al, ‘Training Legal Interpreters to Work with Deaf Jurors’ in Jeremy L Brunson (ed), Legal Interpreting—Teaching, Research and Practice (Gallaudet University Press, 2022) 246.

    ↑

53. Consultation 13 (National Accreditation Authority for Translators and Interpreters (NAATI)).

    ↑

54. Judicial Council on Cultural Diversity, Recommended National Standards for Working with Interpreters in Courts and Tribunals (Report, Second Edition, March 2022) 63, Standard 18 <https://jccd.org.au/publications/>.

    ↑

55. Information provided by ACT Sheriff to Victorian Law Reform Commission, 18 September 2020.

    ↑

56. Information provided by ACT Sheriff to Victorian Law Reform Commission, 30 May 2022.

    ↑

57. Information provided by ACT Sheriff to Victorian Law Reform Commission, 18 September 2020.

    ↑

58. Information provided by Her Majesty’s Courts and Tribunals Service to Victorian Law Reform Commission, 2 September 2021.

    ↑

59. National Accreditation Authority for Translators and Interpreters, ‘Step 3 A: Ethical Competency’, NAATI (Web Page)
    
    <https://www.naati.com.au/become-certified/how-do-i-become-certified/ethical-competency/>.

    ↑

60. Judicial Council on Cultural Diversity, Recommended National Standards for Working with Interpreters in Courts and Tribunals (Report, Second Edition, March 2022) 63, Standard 19 <https://jccd.org.au/publications/>.

    ↑

61. Information provided by ACT Sheriff to Victorian Law Reform Commission, 18 September 2020.

    ↑

62. Submission 7 (Law Institute of Victoria).

    ↑

63. Lyons v State of Queensland [2016] HCA 38, (2016) 259 CLR 518, [35].

    ↑

64. Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Discussion Paper No 81, 22 May 2014) Proposal 7–15 (b), 18, 192; New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) Recommendation 1(d).

    ↑

65. Evidence Act 2008 (Vic) s 22, sch 1.

    ↑

66. Submissions 8 (Victoria Legal Aid), 11 (Supreme Court of Victoria), 14 (County Court of Victoria).

    ↑

67. Submission 13 (Juries Victoria); Consultations 2 (Law Institute of Victoria), 4 (Victorian Criminal Bar Association), 16 (Office of Public Prosecutions Victoria).

    ↑

68. Australian Sign Language Interpreters’ Association (ASLIA), Code of Ethics and Guidelines for Professional Conduct (2007); Australian Institute of Interpreters and Translators (AUSIT), Code of Ethics (November 2012); Consultations 18 (Australian Sign Language Interpreters’ Association, Victoria and Tasmania (ASLIA)), 19 (Australian Institute of Interpreters and Translators (AUSIT)), 21 (Della Goswell, Lecturer, Convenor Auslan-English Interpreting Program, Macquarie University, NSW).

    ↑

69. Consultation 13 (National Accreditation Authority for Translators and Interpreters (NAATI)).

    ↑

70. Consultations 5 (Expression Australia), 13 (National Accreditation Authority for Translators and Interpreters (NAATI)), 18 (Australian Sign Language Interpreters’ Association, Victoria and Tasmania (ASLIA)), 19 (Australian Institute of Interpreters and Translators (AUSIT)).

    ↑

71. Consultation 3 (Academics: Professor Jemina Napier (Heriot-Watt University), Professor Sandra Hale (University of New South Wales), Associate Professor Mehera San Roque (University of New South Wales)).

    ↑

72. Consultation 6 (Deaf Victoria and community participants).

    ↑

73. Submission 14 (County Court of Victoria).

    ↑

74. Consultation 25 (Peter Ward, Partner, Galbally and O’Bryan Lawyers).

    ↑

75. Consultations 14 (Jury Commissioner, New York State Courts in Rochester, Monroe County, United States), 15 (Representatives of High Court and District Courts of New Zealand).

    ↑

76. Consultation 14 (Jury Commissioner, New York State Courts in Rochester, Monroe County, United States). In Chapter 10 we noted that an American Sign Language interpreter provides an oath or affirmation when they start interpreting in the courtroom. The staff interpreter does not have to be sworn every time they interpret.

    ↑

77. Information provided by Her Majesty’s Courts and Tribunals Service to Victorian Law Reform Commission, 2 September 2021.

    ↑

78. Juries Act 1967 (ACT) sch 1 pt 1.1A.

    ↑

79. Consultation 19 (Australian Institute of Interpreters and Translators (AUSIT)).

    ↑

80. Consultations 5 (Expression Australia), 18 (Australian Sign Language Interpreters’ Association, Victoria and Tasmania (ASLIA)).

    ↑

81. Consultation 19 (Australian Institute of Interpreters and Translators (AUSIT)).

    ↑

82. The Victorian Government announced in May 2022 an investment of more than $4 million through the Victorian Budget 2022/23 to make the Diploma of Auslan and the Advanced Diploma of Interpreting (Auslan stream) available fee-free at TAFE from 2023. This is likely to increase the number of Auslan interpreters in the future: The Hon. Gayle Tierney, Minister for Training and Skills and Higher Education (Vic), ‘Increasing the Auslan Teaching Workforce In Victoria’ (Media Release, 17 May 2022).

    ↑

83. Consultation 21 (Della Goswell, Lecturer, Convenor Auslan-English Interpreting Program, Macquarie University, NSW).

    ↑

84. Consultations 8 (Brent Phillips), 10 (Juries Victoria).

    ↑

85. Consultation 8 (Brent Phillips).

    ↑

86. Consultation 21 (Della Goswell, Lecturer, Convenor Auslan-English Interpreting Program, Macquarie University, NSW).

    ↑

87. Consultation 8 (Brent Phillips).

    ↑

88. Consultation 5 (Expression Australia).

    ↑

89. Consultation 14 (Jury Commissioner, New York State Courts in Rochester, Monroe County, United States).

    ↑