Australia, as a multilingual society, is one of the first countries in spearheading the systematic organisation of community interpreting service, and to this date, the need for professional community interpreting continues to grow. According to the 2016 Census (Australian Bureau of Statistics, 2017), over one-fifth of the Australian population reported speaking a language other than English at home. The changing demographics in multicultural Australia leads to a significant growth in the number of interpreter-mediated interactions in community services, among which legal interpreting is of great significance. The quality of legal interpreting service can induce so critical a consequence that the realisation of one’s justice is at stake.

However, all too often, interpreters are hailed or criticised as the sole agent responsible for expediting or hindering justice within the law due to flawed interpreting practices, where little research departs from the standpoint of the institution and questions if they are equipped sufficiently enough to work with interpreters in multilingual cases. Interpreter protocols and guidelines, for one, provide valuable information for judicial officers and legal practitioners to benchmark their practices with sanctioned and theory-grounded principles. For a profession deeply rooted in social justice, it is essential to continually examine the interpreting standards issued by official jurisdiction bodies, to ensure that there is a shared understanding on what is considered quality legal interpreting.

Hale’s (2011) pioneering survey on interpreting policies, practices and protocols in Australian courts and tribunals exemplifies how scholarly authorship contributes to reshaping the legal interpreting practice. The 2009 conference organised by the Australasian Institute of Judicial Administration (AIJA) revealed the daunting situation that a lack of uniformity was observed across states and jurisdictions regarding guidelines to interpreters working in legal interpreting settings. Hale took up this query by surveying 104 Australian judiciary websites for any existing interpreter protocols and guidelines up till the year 2010 and conducting a nationwide questionnaire survey, completed by 148 judicial officers and tribunal members and 138 practising interpreters. Her research paints in exquisite strokes on the interpreting practices in Australian courts and tribunals for bilingual and multilingual cases and yields strong theoretical underpinning to a consistent national protocol on working with interpreters in the judiciary system.

Almost a decade has passed since Hale’s initial inquisition on the interpreting ecology in Australian courts and jurisdictions. It is high time that we look back on what has been published since 2010 on the apparatus of multilingual legal interpreting situations. Publicly available policies and protocols in Australian courts and tribunals in the past decade are investigated to see if there is now a uniformalised understanding of how interpreters should perform their duties in courtrooms. The results indicate that the forecast for a consistent legal interpreting practice is encouraging, with the systematic infrastructure better established on the national level through the recent publication of a national protocol for interpreters working in court settings and the renewed specialised credential for legal interpreters. However, the enaction of these signs of progress on the state and territory level is far from uniformalised, and answers vary from jurisdiction to jurisdiction to questions concerning interpreter’s competence, working conditions and procedures of an interpreter-mediated proceedings. It suggests that all stakeholders in a multilingual courtroom should remain committed to the ongoing dialogue on how to best facilitate interpreters’ engagement in such settings, that can advance legal interpreting as a profession as well as justice and equity for community members of a culturally and linguistically diverse background.

The paper begins by situating the current study in the Australian context, where legal interpreting has long been systematically organised yet only recently specialised. It proceeds to review the literature on quality in legal interpreting, which is fundamental to a multicultural society like Australia and only achievable through the collaboration of all parties involved in multilingual proceedings. The examination of interpreter protocols and guidelines, though scarce, shines light on the scale of guiding resources available to judicial officers and courts in writing. Hale’s monumental project commencing in 2009 is an epitome of such endeavours. The publication of the Interpreter Policies, Practices and Protocols in Australian Courts and Tribunals: A National Survey in 2011 is also reviewed to provide a baseline for the comparison between situations now and then. It then moves on to the data surveyed in the current study, before delving into a more detailed discussion on changes on the national level and its enaction on the state and territory level, as reflected in the existing protocols and guidelines published by jurisdictions.

When it comes to community interpreting, Australia is undoubtedly one of the pioneers and continues to standardise its legal interpreting credential system to remain among the high-end set of countries. A systematic accreditation scheme was established as early as 1977, overlooked by the National Accreditation Authority for Translators and Interpreters (NAATI henceforth) (Hale, 2004). As the national accreditation body, NAATI performs a range of functions relevant to the professionalisation of translators and interpreters in Australia, including setting and maintaining of industrial standards, issuing accreditation through testing or training, and assessing eligibility of qualifications obtained elsewhere (NAATI 2008a, Cf. Taibi, 2012). Its mission, as summarised in its current annual report (2018-19), is “to set and maintain high national standards for the translating and interpreting sector to ensure a supply of appropriately certified professionals to meet the changing needs of Australia’s culturally and linguistically diverse society” (National Accreditation Authority for Translators and Interpreters, 2019: 5).

However, NAATI had long been faulted for the absence of specialised accreditation for legal interpreting (Hale, 2004, 2011). From the 90s through 2018, a five-tiered accreditation system was implemented, where the only specialisation was for conference interpreters. According to Hale (2004, 2011), interpreters working in the court setting are usually accredited at the third tier, or otherwise known as “Professional Interpreter”. They are likely to be untrained interpreters who have never gone through pre-service training specific to interpreting, let alone legal interpreting. Besides, for an extended period of time, the accreditation test was designed to assess interpreters as generalists, rather than specialists in certain settings. The tasks were criticised for their lack of rigour in representing the modes, registers and context specific to legal interpreting (González et al., 1991).

This much-contended flaw was finally addressed in 2017, as NAATI proposed a new five-tier certification scheme to replace the previous accreditation system. Five credential types were introduced: “Recognised Practicing”, “Certified Provisional Interpreter”, “Certified Interpreter”, “Certified Specialist Legal/Health Interpreter” and “Certified Conference Interpreter”. Upon recertification of their previous credentials, Professional Interpreters were transitioned into Certified Interpreters. However, to become Certified Specialist Legal Interpreter, it would require an additional application that examines the “minimum standards of performance across a number of areas of competency” (National Accreditation Authority for Translators and Interpreters, 2018: 30). A review of certification scheme published by NAATI (2016: 12) highlights several areas of knowledge, skills and attributes, which it had been previously criticised for lacking, specifically those in relation to the idiosyncrasies of a specialised setting:

　　　Subject-matter specific knowledge refers to specific areas of knowledge in the professional fields in which interpreters work. Moreover, interpreting assignments often occur in specific institutional settings. Interpreters are required to have Institution-specific knowledge to deal with the particular structures, personnel and practices of those institutions. This includes knowledge of specific institutional protocols, terminology and communication dynamics.

The certification test is also updated to reflect this progress. Interpreters aspiring to receive the credential as a Certified Specialist Legal Interpreter are now subject to stricter pre-requisite screening. To be deemed eligible for the certification test, the interpreter needs to either sit in a pre-requisite screening test or provide evidence on their interpreting qualifications and working experience, as well as legal qualifications or professional development in the area of specialisation. The specialised certification test consists of a knowledge test on legal interpreting, and four interpreting tasks that are “based on real-life exchanges as encountered by interpreters in specialised legal contexts” (National Accreditation Authority for Translators and Interpreters, 2020: 2).

The current specialised credential ensures that interpreters possess a set of key competencies to work competently in court interpreting. This is realised through compulsory formal training and extended period of working experience and safeguarded by passing the minimum requirements as epitomised in the specialised certification test. Since the new certification scheme only began to roll out in late 2019 (National Accreditation Authority for Translators and Interpreters, 2019), scarce was this new credential mentioned in current interpreter protocols and guidelines available just yet. However, it is only a matter of time that Certified Specialised Legal Interpreters rise to the challenge between Scylla and Charybdis of defence and prosecution.

One cannot over-emphasise the significance of community interpreting to linguistically diverse societies, where issues of language and culture intertwine with that of social justice and equity (Bancroft, 2015). The gravity of community interpreting resides in the real need for those who do not speak the societal language to access basic service equally as those who do. The service of community interpreters can induce so critical a consequence, that Hale (2007: 33) asserts that, when it comes to performing a quality job, the responsibility weighs heavily on interpreters working in the community, even more than those working in conferences and international plenary sessions.

Legal interpreting is a much established and institutionalised strand of community interpreting, that traditionally meant court interpreting exclusively but gradually extends to include interpreting of quasi-legal services or processes outside the courtrooms, such as those provided by the legal aid offices (Bancroft et al., 2013). The quality of legal interpreting is subject to constant investigation by researchers of T &I professions (González et al., 1991; Hale, 2004; Mikkelson, 2016; Prieto Ramos, 2020; Shlesinger & Pöchhacker, 2010). It is widely acknowledged that legal interpreting is not a game of solitaire. Interpreters serve as the arm of law in the collaboration of jurist and policy makers, without whom the rights to equity cannot possibly be delivered (Morris, 2010). As aptly put by Ozolins and Hale (2009: 3) in the introduction to the fifth Critical Link Conference, the quality of interpreting is not to be assumed by interpreters solely, but by all those who are involved in the process of multilingual litigation, and beyond:

　　　Each speaker needs to assume responsibility for what they say and how they say it; employers need to assume responsibility for providing suitable conditions and remuneration; the different systems need to assume responsibility for ensuring that minimum standards are demanded; educational institutions need to assume responsibility for providing adequate resources and support; researchers need to assume responsibility for making their research relevant, applicable and accessible to practitioners; and interpreters need to assume responsibility for their own professional development and professionalism.

In the same volume, Roberts-Smith (2009) lends strong support to this statement through his observations made as a senior legal officer of the Supreme Court of Western Australia. He cites several cases where inconsistent practices of judges and lawyers when dealing with an interpreter impinge on forensic procedures, resulting in errors that are usually at the expense of the litigant. In the same light, Morris (2010) resonates that the judiciary’s “not playing the game”, that is, not assuming responsibility for a competent legal interpreting process, encroaches on the fundamental rights of the minority-language-speaking clients. These findings are barely new, yet once again highlight the significance of research examining existing protocols and guidelines in an effort to identify the “missing stitches” and thread in updated concepts and knowledge on the legal interpreting profession.

However, rarely were interpreter protocols and guidelines put under scrutiny in previous research to assess if they adequately inform the practice on the part of the institution when dealing with litigants from a different cultural and linguistic background. Examinations as such are essential to ascertain flaws and strengths in the current practice. In his survey of language access policies, standards and guidelines in the United States justice system, Killman (2020) found that, while interpreting services are reliably provided by different courts, court-related translation nonetheless receives barely as much attention. Court interpreters are obliged by this lacuna in principle to take up the role of ad hoc translators and perform duties irrelevant to their credential. By the same token but specific to health interpreting, Angelelli et al. (2007) also highlight the significance of reviewing existing healthcare interpreter standards, including the Code of Ethics developed by the Australian Institute for Interpreters and Translators (2012), in the process of developing and validating the California Standards for Healthcare Interpreters.

A uniform and consistent framework is warranted to promote common understanding of the work of a legal interpreter among all parties, across all jurisdictions and throughout all interactive episodes of a legal proceeding. To my knowledge, there has not been a systematic enquiry on interpreter protocols and guidelines in the Australian justice system since Hale’s (2011) initial study, which this study seeks to redress. Firstly, the subsequent section looks at Hale’s work in further details that laid the backdrop to the current study.

Despite being at the forefront of community interpreting, Australia lay inert when it comes to the professionalisation and standardisation of interpreting in courtrooms. The 2009 conference held by the Australasian Institute of Judicial Administration (AIJA) revealed the dire need of a consistent national protocol on working with interpreters in the justice system. Following this call, a research project, led by Professor Sandra Hale, was rolled out Australia-wide to provide an overview of interpreting practices in Australian courts and tribunals. The objective is to identify strengths and weaknesses in the practices then, which could be included in the recommendations for a protocol that extends to all interpreters working in the justice system. The result of this project was compiled and published in the Interpreter Policies, Practices and Protocols in Australian Courts and Tribunals: A National Survey (Hale, 2011).

The project consisted of a survey of policies, protocols and guidelines for working with interpreters in courts and tribunals, as well as two questionnaires, respectively addressed to judicial officers and tribunal members and interpreters. A total of 104 websites relevant to all Australian jurisdictions were reviewed during the period of December 2009 and June 2010. Under analysis were three types of policy documents or guidelines available on these websites (Hale, 2011: 5): General policy documents on “access and equity issues, multiculturalism or language services”, or with “some mention of interpreter provision and minimum requirements”; Guidelines for judicial officers or tribunal members on how to work with interpreters; and Guidelines for interpreters on how to work with the court or tribunals. In addition, two questionnaires were distributed online, covering a range of issues concerning interpreting practices in court settings, such as those on quality, process and remuneration. They were met with responses from 148 judicial officers, including tribunal members, judges and magistrates and registrars, and 138 interpreters.

The results suggested a staggering lack of uniformity across jurisdictions at a national level, not only in the types of guidelines available but also in how these guidelines are implemented in practice. According to Hale (2011: xii), there was a diverse range of documents accessible, but hardly any specifically catered to the legal sector. However, the ones that did provide a reasonably comprehensive account on working with interpreters were not necessarily familiar to the judicial officers, let alone been implemented consistently across the nation.

Variations were observed in courts’ requirement for interpreting qualifications or training, as well as their understanding in the interpreting process. While the poor quality of interpreting was much complained about among judicial officers, the priority in hiring an interpreter was not always their level of qualification or training, but accessibility, both time- and price-wise. It also reflected misconceptions among the majority of judicial officers on the nature of legal interpreting, presuming that it only entails “word-for-word” rendition in a different language and that provision of background materials is unwarranted. The interpreters nonetheless conveyed frustration over being mistrusted, not allowing contextual information required to perform a quality job and feeling uncomfortable to ask for clarifications. Despite the mentioning of basic working conditions in existing guidelines, it was also conceded by judicial officers and interpreters that breaks are rarely provided. Many interpreters took issue in remuneration, which was mostly unregulated, and fell in the hands of agencies. A formal interpreting education would barely result in a raise in payment, leaving no incentive for further development.

With all the divergences, there was a unitary demand for a national protocol that “would uniformalise practices across jurisdictions at a national level” (Hale, 2011: xiv), upon which sixteen recommendations were made (2011: xv). Table 1 summarises these recommendations by categorisation into the three main issues discussed in Hale (2011). These recommendations serve as an integral whole to elevate the quality of interpreting provided to culturally and linguistically diverse community members seeking justice services. The issue of competence came to the fore in this discussion, landing especially hard on the lack of specialised accreditation and formal training and their recognition in the hiring process and remuneration. The recommendations also encourage communications between practitioners of the law and interpreters, fostering trust and understanding in interpreters as the conducive collaborator in the multilingual courtrooms.

Almost ten years have gone by since the blueprint was laid out for a consistent guideline on working with interpreters in Australian courts and tribunals. To what extent have these recommendations informed institutional guidelines published thereafter? Is there more consistency in legal interpreting practice in Australian courts and tribunals that are, at least, discernible on paper? This study sets out to address these two questions.

The establishment of the Judicial Council on Cultural Diversity (JCCD henceforth) in Australia marks the cornerstone of solidarity, as members from across judiciaries and community and legal bodies join efforts to support justice and equality in culturally and linguistically diverse community members’ access to legal services. Established in 2014 under the endorsement of the Council of Chief Justices of Australia, the JCCD is a national advisory body to aid Australian courts, judicial officers and administrators in their response to the diverse needs of a multicultural Australia. The council constitutes members nominated across all jurisdictions and court levels. In supporting “procedural fairness and equality of treatment for all court users”, one of the critical missions of JCCD is to “develop and provide independent advice on protocols, best practice guidelines and proposals for dealing with cultural and linguistic diversity-related issues in Australian courts and tribunals” (Judicial Council on Cultural Diversity, 2014).

This mission was promptly fulfilled in 2017, following the launch of the Recommended National Standards for Working with Interpreters in Courts and Tribunals(The Standards) in 2017 (Judicial Council on Cultural Diversity, 2017). It was prepared by a specialist committee appointed by the JCCD, the members of which include Professor Sandra Hale herself. In many ways, the Standards makes apparent reference to Hale’s original work in 2011 and is substantiated with extensive annotations by Hale, quoting latest research on legal interpreting for validations. A total of 26 standards are divided into four sections, directed respectively to different parties responsible for the facilitation of court interpreting: courts, judicial officers, interpreters and legal practitioners. In accordance with the categorisation in Hale (2011), Table 2 shows how the standards are assigned depending on their pertinence to the three topics: competence, work conditions and processes of engaging an interpreter.

However, the examination of protocols and guidelines available at state and territory level indicates that the national standards cannot be regarded as the silver bullet to the inconsistency observed in court interpreting practices Australia-wide. In fact, it would be almost mythical for jurisdictions to instantaneously subscribe to the new standards in a narrow time window. Nonetheless, its implication is far-reaching. On the one hand, the Standards establish sanctioned and optimal practices in the courts’ facilitation of interpreting services for people from culturally and linguistically diverse backgrounds. On the other hand, it is also an official nod to legal interpreting as a profession, acknowledging interpreters’ indispensable role as “officers of the court” (2017: 5).

Recognising the existing jurisdictional differences in the use of interpreters in court proceedings, the Standards recommends “practices and procedures to be considered and adopted by courts where and when resources permit” (2017: 6), and so the courts oblige. It becomes evident that the Standards informs a number of current documents and guidelines, including Interpreting at AAT (Administrative Appeals Tribunal, 2020), Interpreter Protocols (ACT Courts and Tribunals, 2020), Equity before the Law Benchbook (Judicial Commission of NSW, 2018), and Guideline: Working with Interpreters in Queensland Courts and Tribunals (Queensland Courts and Tribunals, 2019).

However, as demonstrated in the following sections, the enaction on the state and territory level is often of reduced efficacy and barely to an equal breadth as the Standards. The question on who may be considered eligible to work in court settings was met with dissonant answers jurisdiction by jurisdiction, with insufficient consideration of the current certification system, let alone the specialised credential. Moreover, with the institutional power invested in them, judicial officers and tribunal members exercise the duality of service and control in their interaction with the interpreter during court interpreting. This results in contrasting approaches across jurisdictions when adopting recommendations from the Standards in their local practice.

Quality legal interpreter builds around a shared responsibility of all parties responsible in a multilingual courtroom, among which judicial officers and tribunal members have an integral part to play, yet are less likely to subject to scrutiny in comparison with interpreters. This paper seeks to claim further attention on the part of the institution, specifically, how they are guided by practice protocols and guidelines in their interaction with interpreters during proceedings. Following Hale’s (2011) ground-breaking inquisition, this research revisits language service policies and interpreter protocols and guidelines published or updated after 2010 to examine if current practices across jurisdictions are directed by a more consistent interpreting standard nationwide. The answer to this enquiry seems to be stratified on the national and state level. On the national level, legal interpreting is steering into the course of becoming a more specialised and standardised profession, with specialised credential for legal interpreters and a national protocol in place. However, on the state and territory level, discrepancies are observed in practice guidelines across jurisdictions, signalling the magnitude of work yet to be done before a consistent legal interpreting practice can be in place nation-wide. Examination as such reviews the monumental advancement in the profession that yields valuable Australian experience to countries in pursuit of a similar systematic overhaul of language services, while at the same time, warns against complacencies when the predicament of inconsistency in legal interpreting practices at local level awaits to be addressed.