According to the research, the lack of certified interpreters during current court proceedings is undermining access to justice and a fair trial for non-English speakers.

More than one in five Australians speak a language other than English, with the 2016 census identifying more than 300 separately identified languages spoken in Australian homes. Despite court interpreters being required in more than 175 languages, interpreting training is only available in less than 20 of those.

As such, the research raises questions about equity, access to justice, and the nature of a fair trial for non-English speakers and examines whether access to justice is affected in criminal trials that involve interpreters.

UNSW Professor Ludmila Stern is a historian and interpreter who researches interpreted proceedings and intercultural communication in international and domestic courts and tribunals – and is leading a research project entitled, Communication between judicial officers and court interpreters: Implications for access to justice.

“Interpreters have a key role to play in ensuring access to justice and a fair trial for defendants,” she said.

“However, their skill alone is not enough to ensure equity. How courts accommodate bilingual communication and interpreters’ professional requirements makes a difference, too.”

While there is a clear need to increase the number of trained and certified interpreters in Australia, especially for the large number of new and emerging languages of recent migrants, refugees, asylum seekers and First Nation languages, this project’s focus, Professor Stern explained, “is on the significant role court administration and judicial officers play in ensuring effective interpreted communication”.

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Professor Stern has been offering training for judicial officers on how to work with interpreters for over 20 years with UNSW Professor Sandra Hale.

The current research project includes interviews with judicial officers about how they work with interpreters and with interpreters about their experience in court as well as observations of interpreted proceedings around the country.

“It was very satisfying to see that things ran smoothly because the judicial officer, the interpreter and the lawyers followed the recommended standards, and all worked together collaboratively and effectively,” Professor Hale said.

However, interpretation is not at the forefront of courtroom proceedings.

“The judicial officers are focused on the case,” Professor Stern added.

“They are busy and may forget about the interpreter, so they are not aware of the interpreter’s requirements to achieve interpreting quality.”

In Australia, interpreters don’t have a dedicated workspace in the courtroom. If they interpret for a witness, they join the witness inside or beside the witness box. The rest of the time the interpreter sits beside the defendant either in the public gallery or in the dock.

Approximately half the judges and magistrates interviewed for the study in 2020–23 said they were aware of the recommended national standards and those who adhered to them found them straightforward.

“Judicial officers say they try to slow down their speech, that they sometimes pause or repeat what they say to accommodate the interpreter,” Professor Stern explained.

“And our observations have shown that in some cases they do slow down, pause and accommodate the interpreter. However, at different points, they speed up again.

“The majority of judges said they ask lawyers to speak more slowly, but once again the observations have shown that they sometimes do that. They are more accommodating when the interpreter is in the witness box interpreting in consecutive mode, but most forget about the interpreter sitting in the dock or public gallery interpreting in the whispered simultaneous mode.”

However, rather than rely on the national standards or other policy documents, some judges said they relied on their experience and their ability to work with interpreters intuitively when faced with interpretation challenges in the courtroom.

“But it’s clear that the interpreting process itself is also invisible, in that it’s poorly understood by those whose speech is being interpreted. Speakers need to speak at a certain pace, perhaps about 100 words per minute, to give interpreters time to comprehend, convert and relay the meaning of what is said. Interpreters cannot interpret for more than 30–45 minutes without a break, and they may need repetition if the speaker turns their back to them,” Professor Stern added.

“Imagine sitting in the dock next to the accused with your neck and your body twisted as you whisper what is being said to the accused. Interpreters are straining their voice, straining their body. And the mental effort is also fatiguing.”

In international conference and court settings where simultaneous interpreting takes place, the practice is for interpreters to work in teams of two or three, to work in 30-minute shifts wearing headphones and speaking into a microphone so they are isolated from external sounds – but Professor Stern said that “Australia has not followed this process” and “it is affecting the efficacy of the communication process in courts”.

“Removing language barriers is essential to ensuring people with limited or no English proficiency receive a fair trial. Interpreters, judges, magistrates and lawyers must work collectively towards optimal communication to ensure non-English speakers have equitable access to justice,” she concluded.