DZAAA & Ors v Minister for Immigration & Anor

[2011] FMCA 434

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZAAA & ORS v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 434

MIGRATION – Offshore entry person – application for judicial review – applicant represented by lawyer – applicant to be present in Court – whether applicant entitled to an interpreter to interpret proceedings.

PRACTICE & PROCEDURE – Interpreters – applicant represented by lawyer in judicial review proceedings – applicant to be present in Court – whether applicant entitled to an interpreter to interpret proceedings.

Family Law Act 1975 (Cth), s.34
Federal Court of Australia Act 1976 (Cth), s.23
Federal Magistrates Act 1999 (Cth), ss.3, 15, 42, 66, 67, 72, 68 and 69(1), (3) and (5)
Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 10.01(3), 16.06, Part 10
International Covenant on Civil and Political Rights, Article 14(1)
Migration Act 1958 (Cth), s.36(2)

BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61
BZAAB v Minister for Immigration and Citizenship & Anor [2011] FCA 429
Crimson SRL & Anor v Claudia Shoes Pty Ltd & Ors (No 6) [2008] FMCA 108
De La Espriella-Velasco v The Queen (2006) 197 FLR 125; [2006] WASCA 31
Genovese v BGC Construction Pty Ltd [2006] FMCA 1507
Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414
Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14; [2010] HCA 41
Singh v Official Trustee in Bankruptcy & Anor [2008] FMCA 521

Skipworth v State of Western Australia & Ors (No 2) (2008) 218 FLR 16; [2008] FMCA 544

SZIRS v Minister for Immigration & Anor [2007] FMCA 214
SZCTQ v Minister for Immigration [2005] FMCA 252
SZQCY v Minister for Immigration and Citizenship & Anor [2011] FMCA 358
Toomelah Boggabilla Local Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 306
Trazblend v Simon Mathews Aviation & Anor (No 2) [2007] FMCA 373

Australian Law Reform Commission, Report 57, Multiculturalism and the Law, 1992

Federal Magistrates Court Interpreter and Translator Policy, Barnett “Mind Your Language Interpreters in Australian Immigration Proceedings” [2006] UWSLawRw 5

Applicant: DZAAA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MICHAEL GRIFFIN, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 5 of 2011

Applicant: DZAAB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: DR RON WITTON, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 7 of 2011

Applicant: DZAAC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: DR RON WITTON, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 8 of 2011

Applicant: DZAAD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: DR RON WITTON, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 9 of 2011

Applicant: DZAAE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MICHAEL GRIFFIN, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 10 of 2011

Applicant: DZAAF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: KERRY BOLAND, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 11 of 2011

Applicant: DZAAH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: LUKE HARDY, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 13 of 2011

Applicant: DZAAI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: DR RON WITTON, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 14 of 2011

Applicant: DZAAJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MARA MOUSTAFINE, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 15 of 2011

Applicant: DZAAK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MARA MOUSTAFINE, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 16 of 2011

Applicant: DZAAL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: LUKE HARDY, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 17 of 2011

Judgment of: Lucev FM

Hearing date: 31 May 2011

Date of Last Submission: 31 May 2011

Delivered at: Perth (by video-link to Darwin)

Delivered on: 10 June 2011

REPRESENTATION

Counsel for the Applicants in DZAAA, DZAAE, DZAAF, DAAH, DZAAJ, DZAAK and DZAAL: Ms A Handley

Solicitors for the Applicants in DZAAA, DZAAE, DZAAF, DAAH, DZAAJ, DZAAK and DZAAL: Northern Territory Legal Aid

Counsel for the Applicants in DZAAB, DZAAC, DZAAD and DZAAI: Mr J Lawrence

Solicitors for the Applicants in DZAAB, DZAAC, DZAAD and DZAAI: Ward Keller Lawyers

Counsel for the First Respondent: Mr A Markus

Solicitors for the First Respondent: Australian Government Solicitor

For the Second Respondent: Submitting appearance, save as to costs.

ORDERS

DNG 5 of 2011

1. That, unless the applicant elects otherwise, a Registrar of the Court in the Darwin Registry:

   (a)must provide an interpreter in the language nominated in the application, to be personally present with the applicant, to interpret for the applicant at the hearing of the application in Darwin; and

   (b)if, and only if, for reasons other than cost, the interpreter is unable to be personally present with the applicant to interpret for the applicant at the hearing of the application in Darwin, then must provide an interpreter in the language nominated in the application, to appear by video-link, to interpret for the applicant at the hearing of the application in Darwin.

DNG 7 of 2011

1. That, unless the applicant elects otherwise, a Registrar of the Court in the Darwin Registry:

   (a)must provide an interpreter in the language nominated in the application, to be personally present with the applicant, to interpret for the applicant at the hearing of the application in Darwin; and

   (b)if, and only if, for reasons other than cost, the interpreter is unable to be personally present with the applicant to interpret for the applicant at the hearing of the application in Darwin, then must provide an interpreter in the language nominated in the application, to appear by video-link, to interpret for the applicant at the hearing of the application in Darwin.

DNG 8 of 2011

1. That, unless the applicant elects otherwise, a Registrar of the Court in the Darwin Registry:

   (a)must provide an interpreter in the language nominated in the application, to be personally present with the applicant, to interpret for the applicant at the hearing of the application in Darwin; and

   (b)if, and only if, for reasons other than cost, the interpreter is unable to be personally present with the applicant to interpret for the applicant at the hearing of the application in Darwin, then must provide an interpreter in the language nominated in the application, to appear by video-link, to interpret for the applicant at the hearing of the application in Darwin.

DNG 9 of 2011

1. That, unless the applicant elects otherwise, a Registrar of the Court in the Darwin Registry:

   (a)must provide an interpreter in the language nominated in the application, to be personally present with the applicant, to interpret for the applicant at the hearing of the application in Darwin; and

   (b)if, and only if, for reasons other than cost, the interpreter is unable to be personally present with the applicant to interpret for the applicant at the hearing of the application in Darwin, then must provide an interpreter in the language nominated in the application, to appear by video-link, to interpret for the applicant at the hearing of the application in Darwin.

DNG 10 of 2011

1. That, unless the applicant elects otherwise, a Registrar of the Court in the Darwin Registry:

   (a)must provide an interpreter in the language nominated in the application, to be personally present with the applicant, to interpret for the applicant at the hearing of the application in Darwin; and

   (b)if, and only if, for reasons other than cost, the interpreter is unable to be personally present with the applicant to interpret for the applicant at the hearing of the application in Darwin, then must provide an interpreter in the language nominated in the application, to appear by video-link, to interpret for the applicant at the hearing of the application in Darwin.

DNG 11 of 2011

1. That, unless the applicant elects otherwise, a Registrar of the Court in the Darwin Registry:

   (a)must provide an interpreter in the language nominated in the application, to be personally present with the applicant, to interpret for the applicant at the hearing of the application in Darwin; and

   (b)if, and only if, for reasons other than cost, the interpreter is unable to be personally present with the applicant to interpret for the applicant at the hearing of the application in Darwin, then must provide an interpreter in the language nominated in the application, to appear by video-link, to interpret for the applicant at the hearing of the application in Darwin.

DNG 13 of 2011

1. That, unless the applicant elects otherwise, a Registrar of the Court in the Darwin Registry:

   (a)must provide an interpreter in the language nominated in the application, to be personally present with the applicant, to interpret for the applicant at the hearing of the application in Darwin; and

   (b)if, and only if, for reasons other than cost, the interpreter is unable to be personally present with the applicant to interpret for the applicant at the hearing of the application in Darwin, then must provide an interpreter in the language nominated in the application, to appear by video-link, to interpret for the applicant at the hearing of the application in Darwin.

DNG 14 of 2011

1. That, unless the applicant elects otherwise, a Registrar of the Court in the Darwin Registry:

   (a)must provide an interpreter in the language nominated in the application, to be personally present with the applicant, to interpret for the applicant at the hearing of the application in Darwin; and

   (b)if, and only if, for reasons other than cost, the interpreter is unable to be personally present with the applicant to interpret for the applicant at the hearing of the application in Darwin, then must provide an interpreter in the language nominated in the application, to appear by video-link, to interpret for the applicant at the hearing of the application in Darwin.

DNG 15 of 2011

1. That, unless the applicant elects otherwise, a Registrar of the Court in the Darwin Registry:

   (a)must provide an interpreter in the language nominated in the application, to be personally present with the applicant, to interpret for the applicant at the hearing of the application in Darwin; and

   (b)if, and only if, for reasons other than cost, the interpreter is unable to be personally present with the applicant to interpret for the applicant at the hearing of the application in Darwin, then must provide an interpreter in the language nominated in the application, to appear by video-link, to interpret for the applicant at the hearing of the application in Darwin.

DNG 16 of 2011

1. That, unless the applicant elects otherwise, a Registrar of the Court in the Darwin Registry:

   (a)must provide an interpreter in the language nominated in the application, to be personally present with the applicant, to interpret for the applicant at the hearing of the application in Darwin; and

   (b)if, and only if, for reasons other than cost, the interpreter is unable to be personally present with the applicant to interpret for the applicant at the hearing of the application in Darwin, then must provide an interpreter in the language nominated in the application, to appear by video-link, to interpret for the applicant at the hearing of the application in Darwin.

DNG 17 of 2011

1. That, unless the applicant elects otherwise, a Registrar of the Court in the Darwin Registry:

   (a)must provide an interpreter in the language nominated in the application, to be personally present with the applicant, to interpret for the applicant at the hearing of the application in Darwin; and

   (b)if, and only if, for reasons other than cost, the interpreter is unable to be personally present with the applicant to interpret for the applicant at the hearing of the application in Darwin, then must provide an interpreter in the language nominated in the application, to appear by video-link, to interpret for the applicant at the hearing of the application in Darwin.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

DNG 5 of 2011

DZAAA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MICHAEL GRIFFIN, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

DNG 7 of 2011

DZAAB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DR RON WITTON, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

DNG 8 of 2011

DZAAC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DR RON WITTON, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

DNG 9 of 2011

DZAAD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DR RON WITTON, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

DNG 10 of 2011

DZAAE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MICHAEL GRIFFIN, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

DNG 11 of 2011

DZAAF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

KERRY BOLAND, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

DNG 13 of 2011

DZAAH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

LUKE HARDY, IN HIS CAPACITY AS INDEPENDENT
MERITS REVIEWER

Second Respondent

DNG 14 of 2011

DZAAI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DR RON WITTON, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

DNG 15 of 2011

DZAAJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MARA MOUSTAFINE, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

DNG 16 of 2011

DZAAK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MARA MOUSTAFINE, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

DNG 17 of 2011

DZAAL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

LUKE HARDY, IN HIS CAPACITY AS INDEPENDENT
MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Applicants in detention in Darwin

1. Each of the cases before the Court concerns an application by an offshore entry person, in immigration detention in Darwin, for judicial review of a decision by an Independent Merits Reviewer.  In each case preliminary issues have arisen concerning the provision and cost of an interpreter for the applicant.  In each case the applicant has requested an interpreter in a nominated language.  The matters were argued on 31 May 2011 and the Reasons for Judgment prepared with some expedition as the first four cases are due to be heard by the Court on 22-24 June 2011.

2. There is no application for any applicant to “appear” by video or audio-link at the final hearing of each application.  That is no doubt because there is an undertaking by the first respondent, the Minister, that provided the applicants remain in Darwin, the Minister will bring each applicant to Court in Darwin for the final hearing of their application.[1]  The Court has ordered and listed each application for final hearing on various dates in June, July, August and September 2011.

   [1] “Minister’s Undertaking”.

Preliminary issues

1. The preliminary issues which have arisen in these proceedings are:

   a)whether an applicant ought to have the assistance of an interpreter in Court at final hearing; and

   b)who should pay for an interpreter if the Court concludes that an interpreter ought to be provided.

Applicants’ submissions

1. The applicants submit that the Court should conclude that:

   a)an interpreter is required for the final hearing of each application; and

   b)the Court should pay for the interpreter.

2. The applicants submit that:

   a)the Australian Law Reform Commission, Report 57, Multiculturalism and the Law, 1992[2] observed that:

   [2] “ALRC Report”.

   i)in the context of the international obligations under Article 14(1) of the International Covenant on Civil and Political Rights[3] said that:

   [3] “ICCPR”.

   To the extent that a fair hearing of any matter, criminal or civil, requires that a person have the services of an interpreter, he or she should be entitled to (and if necessary provided with) an interpreter.[4]

   [4] ALRC Report at para.3.5.

   ii)the ALRC Report further states that:

   Where a party or witness requests the assistance of an interpreter there should be a presumption in favour of granting the request. Where no such request is made but there is doubt about the likelihood of the court being able to understand a party or a witness, or about the ability of the party or witness to comprehend and communicate in the proceedings, the court should make inquiries and ensure that an interpreter is provided if necessary …[5]

   [5] ALRC Report at para.3.20.

   and

   The decision to allow a party to civil proceedings to have the proceedings interpreted for him or her or to allow a witness to give evidence through an interpreter is a matter for the trial judge’s discretion. The guiding principle is natural justice. However, the New South Wales Court of Appeal recently held that any party who is unable, either because of some physical incapacity or due to lack of knowledge of the language of the court, to understand what is happening must, by the use of an interpreter, be placed in the position which he or she would be in if those defects did not exist. Refusal to allow translation while the litigant remains in open court is to discriminate against the litigant on the basis of lack of proficiency in speaking or understanding the English language.[6]

   [6] ALRC Report at para.3.37, citing Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 (“Gradidge”).

   b)the policy of this Court as stated in the Federal Magistrates Court Interpreter and Translator Policy[7] provides that where an applicant or witness is required to give evidence or needs to be available for cross-examination, it is the responsibility of the Court to arrange and pay for the costs of an interpreter;

   c)applicants in these types of proceedings need to be afforded procedural fairness,[8] and to fail to provide an interpreter for an applicant sitting in Court at a final hearing of an application, so as to allow an applicant to understand the proceedings, goes against the principles of natural justice and would not afford the applicant procedural fairness. It is therefore said to be in the interests of the administration of justice for the applicant to understand the proceedings, which will determine whether the applicant has another opportunity to put their claim for refugee status before an independent merits reviewer for a recommendation regarding whether they meet the criterion for a protection visa set out in s.36(2) of the Migration Act1958 (Cth).[9]  The applicants will thus be able to have their day in Court and see how the decision making process works in their case;

   d)the case of SZQCY v Minister for Immigration and Citizenship & Anor[10] relied upon by the Minister can be confined to its circumstances, which involved an applicant in immigration detention in the Curtin Detention Centre in Western Australia who had filed an application in the Sydney Registry of this Court, and who sought to be permitted to appear by video-link at the final hearing.  The Court found that that was unnecessary, but the applicants say that in this case the circumstances are distinguishable because the Minister has provided an undertaking to produce the applicants at Court at the final hearing;

   e)the question of who should pay for the interpreter in these types of matters is answered in the ALRC Report as follows:

   The next question is who should pay for interpreters in courts. Should the cost of an interpreter be met from the public purse or by the person who needs the interpreter? There are a number of competing considerations. The quality of access to justice demands, in principle, that a person should not be barred from participating in court proceedings, the outcome of which may affect his or her rights, for no other reason than that he or she does not speak English. It also demands that such a person should not be liable for an additional cost that applies only because he or she does not speak English. Generally speaking, the person does not choose the interpreter. Unlike a legal representative, an interpreter does not represent, take instructions from or advocate on behalf of the person for whom he or she is interpreting. The interpreter’s function is simply to interpret, thereby making a non-English speaker’s evidence accessible to the court and the proceedings (or that part of them being interpreted) accessible to the non-English speaker. The interpreter is the voice and ears of the non-English speaker and, when the non-English speaker is giving evidence, the voice and ears of the court. In some cases, an individual may simply be unable to afford the cost of a professional interpreter and may be unable or unwilling to organise a suitable interpreter from among friends or relatives. If a person does engage and pay for his or her interpreter, the interpreter may be seen as partisan. The Commonwealth has already accepted responsibility for providing interpreters in some contexts. The Commission believes that, as far as possible, the costs of interpreting in courts should be funded as part of the infrastructure of the courts in accordance with the Government’s commitment to access and equity in the legal systems. However, it acknowledges that priorities must be set for the gradual extension of interpreter services and has indicated that these should be in its recommendation in this chapter.[11]

   f)the Court has a broad power under s.72 of the Federal Magistrates Act 1999 (Cth)[12] to make such orders as it thinks just in relation to the payment of expenses associated with a final hearing of these proceedings, and those expenses would include the cost of interpreters;

   g)the applicants in these types of proceedings will be likely to be impecunious and the requirement for additional hearing costs for interpreter services would be prohibitive and would discriminate against the applicants on the grounds of lack of proficiency in the English language; and

   h)there are accredited interpreters available in Darwin in the relevant languages currently working for the Minister at the Northern Immigration Detention Centre in Darwin.

   [7] Available at (“Court Interpreter and Translator Policy”).

   [8] Citing Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14; [2010] HCA 41 (“M61/2010”).

   [9] “Migration Act”.

   [10] [2011] FMCA 358 (“SZQCY”).

   [11] ALRC Report at para.3.22 (footnotes omitted).

   [12] “FM Act”.

Respondent’s submissions

1. The Minister submitted that:

   a)there is no specific power that provides for the making of an order that a party provide, or be made responsible for the cost of providing, interpreting services, and whilst it may be accepted that s.15 of the FM Act is expressed in wide terms, similar to those in s.23 of the Federal Court of Australia Act 1976 (Cth) and s.34 of the Family Law Act 1975 (Cth), those provisions provide the power to grant relief or remedies in relation to matters in which the relevant court has jurisdiction, and are not a general power enabling the Court to make procedural orders and directions, and are therefore not ordinarily available as a source of power to make orders at an interlocutory stage which could not be made at a final hearing;[13]

   b)the conduct of proceedings is dealt with specifically at Part 10 of the Federal Magistrates Court Rules 2001 (Cth),[14] and none of the specific provisions of r.10.01(3) relate to interpreters, and although r.10.01(3)(s) of the FMC Rules provides the Court with wide powers to make orders or directions in relation to “any other matter that the Court … considers appropriate”, that general discretion has to be read subject to the FM Act, and is not at large;

   c)even if one proceeds on the basis that the Court has certain implied powers to prevent abuses of process, and to ensure that the administration of justice is not otherwise interfered with, such an inherent power could not be employed to create new rights or obligations not otherwise recognised by law;

   d)in the present case there is no suggestion that the interests of the administration of justice require or demand that the applicant be provided with interpretation services at a hearing, being a judicial review application in which the applicant is represented by Counsel, and the Court must have regard to the potentially extremely wide ranging consequences of making an order requiring a party to litigation to provide resources to the other party (that is the opponent) for purposes associated with the litigation;

   e)in SZQCY this Court, differently constituted, held that it was not necessary for the applicant to appear in Court either in person or by video-link;[15]

   f)the fact that the applicant is in immigration detention has no bearing on the question whether an applicant is entitled to interpreter services, or who should be responsible for the provision of interpreter services.  The Minister accepts that, if an applicant is unrepresented, and is in need of interpreter services, the interests of the administration of justice do require that interpretation services be provided at a hearing.  The Minister however also submits that where the applicant is legally represented there is no such entitlement, irrespective of whether an applicant wishes to have that benefit, or whether the Court regards the provision of such services as generally desirable;

   g)in circumstances where an applicant is unrepresented, and because of a lack of English language skills interpretation services are made available at a hearing, such services are provided by the Court and the costs of such services are not visited upon the Minister or another party.  However, where applicants are represented, the Court does not ordinarily make interpreter services available because it can no longer be said that the interests of the administration of justice so require or demand, and that is the case irrespective of whether an applicant is in the community, or in immigration detention.

   [13] Citing Toomelah Boggabilla Local Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 306, and Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1.

   [14] “FMC Rules”.

   [15] SZQCY at paras.31-32 per Smith FM.

Two cases – two differing approaches

1. Differing approaches have been adopted to the necessity for interpreters to be present for the purposes of civil proceedings.  The differing approaches are exemplified by this Court’s judgment in SZQCY and the New South Wales Court of Appeal judgment in Gradidge.

SZQCY

1. In SZQCY this Court said as follows:

   31. In the present case, the Minister submits that the nature of the matter is judicial review of a written recommendation of an Independent Merits Reviewer, in which the relevant evidence will be documentary. The hearing will almost certainly be confined to exchanges between the bench and counsel in relation to written submissions concerning that documentation. He submits that the applicant could gain no benefit from observing them in person or on a television set in real time. Even if a competent interpreter were supplied to the applicant at his remote location or in the courtroom, it is most unlikely that the oral proceedings could be usefully translated in real time. It would be open to the applicant to be fully informed of the issues in the matter by his counsel before the hearing, and it is to be expected that his counsel or other helpers will take any necessary instructions before the hearing. In the very remote possibility that further instructions were required in the course of the hearing, his counsel would be able to seek adjournments for that purpose. The applicant would have the opportunity after the hearing to obtain counsel’s summary of the hearing and his explanation of what happened.

   32. I accept the points made on behalf of the Minister. In my opinion, no principle of ‘open justice’ is jeopardised by the Court declining to order the Minister to produce or facilitate the applicant to observe the hearing. The courtroom in which the hearing will be conducted will be open to the public, in the same manner as every courtroom in Australia. That hearing will meet all the usual requirements of the open justice principle, in my opinion. A transcript of what will occur will be available to the applicant and any other person in the usual terms.

   33. In circumstances where the applicant must be expected not to be conversant in the English language, it appears to me that there is no necessity, nor any practical benefit to the administration of justice, for the applicant to be either in attendance at the hearing in Sydney or to be observing it by television. In those circumstances, I am not persuaded that the Court should make any orders requiring the Minister to produce the applicant in person at the hearing appointed in Sydney, nor requiring the Minister to make arrangements for the applicant otherwise to observe the hearing or any other listing in the proceedings at which he is represented by his counsel of choice.

   34. Perhaps, the situation might have been different if the applicant had filed his case in Perth, but he has not. Certainly, the situation would have been different if the applicant had not been represented by his counsel of choice, or had been a necessary witness in the case. But, as I said, neither of these situations arise in the present case.[16]

   [16] SZQCY at paras.31-34 per Smith FM.

Gradidge

1. In Gradidge the New South Wales Court of Appeal dealt with an appeal concerning an applicant in a New South Wales compensation court who was a deaf mute.  Whilst the applicant was giving evidence argument arose between Counsel, which argument a sign language interpreter continued to interpret for the benefit of the applicant.  Objection was taken by the respondent’s Counsel, and the trial judge directed the interpreter to desist from communicating matters being argued to the applicant by way of sign language.  The interpreter refused to desist, and the trial was adjourned to enable a case stated to be put before the New South Wales Court of Appeal.  The New South Wales Court of Appeal unanimously held that:

   a)the trial judge erred in law in making the direction, and so long as the applicant was not excluded from the Court she was entitled to have the words of argument interpreted to her; and

   b)the applicant’s Counsel’s authority did not extend so far as to waive her entitlement to have the argument interpreted.[17]

   [17] Gradidge at 414 (taken and summarised from the headnote).

2. The judgment in Gradidge deals comprehensively with the questions of due process, the provision of an interpreter, and the presiding judicial officer’s discretion as to whether an interpreter ought be made available to a party to litigation.

3. In Gradidge it was observed that:

   a)litigants are entitled to the due process of law which “normally includes an entitlement to be informed, in a language which a litigant understands, of the nature of the case.  Where the litigant cannot communicate orally in English it also includes … the entitlement to the assistance of an interpreter”;[18]

   [18] Gradidge at 414-415 per Kirby P.

   b)in relation to the Court’s exercise of discretion:

   i)it is a feature, “important for the administration of justice”, that “a large discretion be allowed to a trial judge to conduct proceedings in a court and to control those proceedings for the attainment of justice according to law”;[19]

   [19] Gradidge at 415 per Kirby P.

   ii)it is a discretion to be properly exercised having regard to the object of its provision, and is not to be exercised on the basis of “idiosyncratic opinions”,[20] but rather with the object of attaining a fair trial for the parties in court;[21] and

   [20] Gradidge at 423 per Kirby P.

   [21] Gradidge at 423 per Kirby P.

   iii)in relation to the exercise of the discretion in the circumstances of the case in Gradidge:

   … the interpretation was necessary not to translate the language of the witness in the witness box. It was necessary in order to ensure basic communication with the party so that she would understand what was happening in a public courtroom. The appellant being deaf, it was necessary that the words used should be interpreted to her. The only way that that party could have the advantage which is taken for granted by persons without the disability of deafness was by the interpretation of the words being used in her presence. If the appellant was not excluded from the court, she was entitled to have the words interpreted to her.[22]

   [22] Gradidge at 424 per Kirby P.

   c)in relation to the principles of “open justice”:

   The principle of an open trial in public, which is such a hallmark of our system of justice, is not a shibboleth and exists for a purpose. That purpose is publicly to demonstrate to all who may be concerned the correctness and the justice of the courts’ determination according to law. That demonstration must extend to the parties themselves, for they are most affected by the outcome of the case. … it is obviously highly desirable that they should understand as fully as possible the reasons that have lead to the outcome. Such reasons may not be fully understood unless the evidence called and the exchanges with the Bench are understood by the parties before the court, including by those who have disabilities of communication or who are not fluent in the English language.[23]

   [23] Gradidge at 417 per Kirby P.

   d)in relation to the position of persons with a disability, namely deafness:

   If the appellant were not deaf, it is obvious that she could hear the arguments of Counsel. She could follow, at least in a general way, the points being made. She could hear and consider the observations not only of Counsel but of the judge. She could, unless excluded from the courtroom during discussion, modify her responses after such an exchange. Many witnesses do so, to take into account something said in their presence which concerns the evidence. For example if the witness followed the discussion about an objection to a leading question, she could more readily respond to the instruction to put answers in proper form or to confine answers more precisely to the questions asked. These are advantages which are accepted, as of course, in the case of a hearing person who speaks and understands the English language and who hears such an exchange between Counsel and the judge. Why should they then be denied to a litigant who is deaf.[24]

   [24] Gradidge at 418 per Kirby P.

   But a deaf person, save for lip-reading, will be in a silent world where the mysteries of the court’s process will inevitably be enlarged. The need is accordingly greater to ensure that such a person has as full an understanding as possible of what is occurring in the case.

   … It is not proper to have a person with a hearing disability sitting silent and uninformed about what is going on in a public courtroom about her. …

   … so long as the person is in open court and that person is deaf, he or she has an entitlement to translation of what is passing in the court, subject only to the overall residual control of the judge to be exercised for proper reasons to ensure that the proceedings are properly conducted. If it were otherwise, our vaunted boasts about open justice and fair procedure would be empty of content for the person who is deaf. I cannot believe that this is what the law requires or permits.[25]

   [25] Gradidge at 423 per Kirby P.

   e)in relation to the denial of interpretation:

   To deny translation whether in the manual/visual language or into any other foreign language whilst the litigant remains in the open court is to discriminate against a litigant on the basis of lack of proficiency to speak or understand the English language.[26]

   [26] Gradidge at 418 per Kirby P. The use of “translation” in this sentence is probably inappropriate, and ought to read “interpretation”, as one translates the written word, but interprets the spoken word: De La Espriella-Velasco v The Queen (2006) 197 FLR 125 at 131 per Roberts-Smith JA; [2006] WASCA 31 at para.7 per Roberts-Smith JA (“De La Espriella-Velasco”)

   f)as to a party’s understanding of the proceedings:

   Ultimately, it is for the court to be satisfied that a party understands what is happening. Otherwise, the court hearing may be reduced to little more than a charade so far as that party is concerned. Especially is this true in the case of a person whose disability is not just a lack of English language but the lack of hearing. Into that silent world justice penetrates.[27]

   [27] Gradidge at 425 per Kirby P.

   g)as to the requirements of procedural fairness:

   … it is essential to balance what procedural fairness requires in circumstances such as this against the necessity to permit a trial judge to retain the ultimate command of order and decorum in her or her court. It seems to me that the principle which applies is clearly enough: it must be that any party who is unable (for want of some physical capacity or for lack of knowledge of the language of the court) to understand what is happening must, by the use of an interpreter, be placed in the position in which he or she would be if those defects did not exist. The task of the interpreter in short is to remove any barriers which prevent understanding or communication.[28]

   h)as to the task of an interpreter:

   The task of an interpreter is not restricted merely to passing on the questions when the party is giving evidence; it must be extended also to appraising a party of what is happening in the court and what procedures are being conducted at a particular time. We are all aware that this is not uncommonly done and sometimes a judge may have to ask an interpreter to speak a little more quietly or remonstrate when altercations develop, as they sometimes do, between the interpreter and the party. All of these things, when they occur, must be determined and dealt with by the trial judge. I emphasise, however, that it is quite wrong to imagine that all an interpreter is supposed to do is to translate questions for a person in the witness-box.[29]

   In the present case, with all respect to Judge McGrath, I do not think that his view was correct and … His Honour was labouring under the misapprehension that the full extent of the role that the interpreter was entitled to play was limited to translating evidence in the case; no doubt His Honour meant the questions asked of the witness by Counsel. As I have already said, I think that the interpreter’s duty goes further than that and the party is entitled to assistance beyond that.[30]

Consideration

[28] Gradidge at 425 per Samuels JA.

[29] Gradidge at 426 per Samuels JA.

[30] Gradidge at 427 per Samuels JA.

Due process, procedural fairness and discretion

1. In these proceedings:

   a)the applicants are entitled to due process and procedural fairness in any hearing by the Court;[31] and

   b)whether, as part of the application of the principles of due process and procedural fairness, there ought to be an interpreter provided to any of the applicants, is, ultimately, a matter for the exercise of the Court’s discretion.[32]

   [31] Gradidge at 414-415 per Kirby P and 425 per Samuels JA.

   [32] Gradidge at 415 and 423 per Kirby P.

SZQCY

1. The Court agrees with the applicants that the circumstances in SZQCY are distinguishable from those in relation to the applicants in the applications presently before the Court.  However, it is necessary to deal with the issues raised by SZQCY because:

   a)it is relied upon in part by the Minister to support the argument that an interpreter is not necessary for these applicants; and

   b)although it deals with the question of whether the applicant, when represented by a lawyer, ought to be entitled to appear at the hearing, in person or by video-link, the current applications give rise to some overlapping issues because the reasons of the Court in SZQCY refusing to order that the applicant be allowed to appear, are the same, or very similar, reasons to those which are now given for arguing that the applicants in these applications ought not have the services of an interpreter made available to them.

2. It is therefore necessary to deal with the reasoning of this Court in SZQCY.

Consideration of issues raised by SZQCY

Whether an applicant is entitled to “appear”

1. In SZQCY the Court determined that the applicant did not have a right to “appear” in Court, either personally or by video-link where the applicant was represented by a lawyer.  In that context, and in what follows in these reasons for Judgment, “appear” is synonymous with “attend”.  In the situation where an applicant is self-represented there appears to be no dispute that the applicant is entitled to appear before the Court.[33]  In this case, because of the Minister’s Undertaking, the right to appear is not ultimately in dispute, save only for the qualification that the Minister’s Undertaking applies only for so long as an applicant remains in Darwin.  The Minister’s Undertaking, given to the Court by the Minister’s lawyer, has the effect of an order of the Court.[34]

   [33] BZAAB v Minister for Immigration and Citizenship & Anor [2011] FCA 429 at paras.3 and 5 per Logan J (“BZAAB”); SZQCY at para.34 per Smith FM.

   [34] FMC Rules, r.16.06.

2. The Minister’s Undertaking to produce each applicant to the Court is an undertaking which, in the Court’s view, is entirely appropriate:

   a)in circumstances where the Court is sitting in Darwin, and the applicants are located in an immigration detention centre reasonably proximate to the locality of the Court in the Darwin Central Business District; and

   b)generally, because where an applicant is in detention in a place of the Minister’s choosing, it is the Minister’s responsibility to ensure that the applicant “appears”.[35]

   [35] BZAAB at paras.3 and 5 per Logan J.

3. Absent some exceptional factors (for example, an applicant with a propensity for violent or other behaviour likely to be obstructive to the proper administration of justice) it is difficult to conceive of circumstances that will require that an applicant be prevented from attending a final hearing which concerns them in this Court, even if an applicant is represented by a lawyer, as are applicants here.

1. Indeed, it is critical, in the Court’s view, that an applicant appears, even if represented.  Part of the reason for that is that the ultimate outcome of these proceedings may impact upon the life and liberty of an applicant.  Arguably, an applicant’s life and liberty are at risk by reason of the alleged fear of future persecution or harm to the applicant, if returned to the applicant’s country of origin/nationality.  In relation to the applicant’s liberty there is a distinct analogy with criminal proceedings.  Thus, whilst these are judicial review proceedings, their outcome may be of the utmost importance to each applicant.  It is potentially sufficiently important to warrant that each applicant be able to properly and appropriately observe, and if necessary participate in, the final hearing of their application in this Court, if the applicant so wishes, even when represented by a lawyer.

2. Although the proceedings are judicial review proceedings it nevertheless remains the case that there are situations which may arise in which an applicant may need to give instructions to a lawyer.  Obviously an applicant cannot, or even know that he or she needs to, do so, if they are prevented from appearing, whether personally in Court, or remotely in Court by video-link.  If the applicant’s access to the Court administering justice is removed, then justice may be denied without the applicant, or the Court, even realising that that has occurred.  If that occurs then the proper administration of justice is likely to have been prejudiced, and the entitlement of the applicant to procedural fairness breached.

3. It might also be said that in order for a lawyer to be properly instructed to be able to conduct judicial review proceedings it is not necessary for an applicant to be present.[36]  Whilst that might often be the case it does not take into account that:

   a)an applicant is entitled to appear in Court (except where for reasons of behaviour or argument on legal issues an applicant is excluded);

   b)an applicant is entitled to hear and understand the argument being put on their behalf, and, just as importantly, the argument put in response by the Minister, to which an applicant is entitled to reply;

   c)even if an applicant’s initial submissions reflect directly the instructions given by an applicant, it may be necessary for any reply to be the subject of further instructions from an applicant, and an applicant brought to Court (as is the case here) who does not have the proceedings interpreted, is not in a position to give instructions to a lawyer appearing on their behalf; and

   d)it may be that the Court raises matters which need to be the subject of instructions, and once again, those instructions cannot be given to an applicant’s lawyer in Court if an applicant, who is in Court, has not had the proceedings interpreted, or if no interpreter is available; and

   e)whilst these are judicial review proceedings, it is not unknown for an applicant to have to give evidence in judicial review proceedings and be cross-examined on that evidence, in which case it will have been necessary, and will be necessary for, the proceedings to be interpreted to the applicant so that the applicant understands what has transpired, and in relation to any evidence, what is transpiring.[37]

   [36] SZQCY at paras.31-32 per Smith FM.

   [37] See, for example, SZIRS v Minister for Immigration & Anor [2007] FMCA 214 where both parties gave evidence about a disputed issue as to the sending of an invitation to a tribunal hearing, and in which relief was granted on the application.

4. In the circumstances the applicant’s non-appearance at, or removal from, the hearing is likely to result in a denial of procedural fairness and an improper administration of justice.

Whether the proceedings ought to be adjourned

1. In SZQCY it is suggested that if issues arise in the course of proceedings at which an applicant is not in attendance, then an adjournment of proceedings might be sought to obtain instructions from an applicant.[38]  Much is thus assumed.  Will the applicant be readily available or accessible in the immigration detention centre?  Will there be an interpreter available, either in person or by telephone, in the appropriate language, at short notice to interpret for the applicant and the lawyer?  Will the lawyer be available to get the instructions, bearing in mind, for example:

   a)that the two lawyers presently appearing on these applications are appearing on legal aid or a pro bono basis; and

   b)that each lawyer has multiple clients, and may be engaged in:

   i)more than one judicial review hearing each day (the Court is sometimes listing two of these matters per day); and

   ii)hearings on successive days.

   [38] SZQCY at para.31 per Smith FM.

2. Therefore, even if matters are adjourned it may not be possible, given limitations on:

   a)access to an applicant;

   b)the availability of interpreters; and

   c)the availability of a lawyer’s times outside of the hearings,

   for a lawyer to make use of an adjournment to obtain instructions.

3. Therefore the adjournment of the proceedings to allow instructions to be obtained may result in a protracted and delayed final hearing, with additional expense incurred as a consequence of the delay, contrary to the objects and purposes of the FM Act and FMC Rules which provide for the Court to operate in a manner which:

   a)is not protracted in its proceedings;

   b)resolves proceedings justly, efficiently and economically;

   c)uses streamlined procedures; and

   d)avoids undue delay, expense and technicality.[39]

   [39] FM Act, ss.3 and 42; FMC Rules, r.1.03.

The opportunity to be told and the availability of transcript

1. The opportunity to be told of what occurred in the hearing after the event, or have access to the transcript, does not avail an applicant, especially if there was a matter or were matters on which further instructions might or might have been given, for that then entails an applicant either:

   a)possibly forgoing matters which might properly have been put before the Court at hearing; or

   b)seeking to re-open the hearing where it has been adjourned with judgment reserved; or

   c)seeking to set aside a judgment already delivered and entered, bearing in mind that some experienced federal magistrates exercising the Court’s migration jurisdiction will often deliver an ex tempore judgment.

2. The difficulties in persuading a court to:

   a)re-open a matter; or

   b)set aside a judgment already properly entered, and to have a matter re-heard,

   are well-known.[40]  They are such that for the Court to put an applicant in that position by reason of the refusal to allow an applicant to appear at a final hearing of an applicant’s application would be unjust, and contrary to the interests of justice and the interests of the administration of justice.[41]  That is particularly so because any application to re-hear, or to set-aside and re-open, on such a basis might easily avoided by allowing an applicant to appear at the final hearing.

   [40] SZCTQ v Minister for Immigration [2005] FMCA 252 at paras.10-12 per Barnes FM; Trazblend v Simon Mathews Aviation & Anor (No 2) [2007] FMCA 373 at paras.15-20 per Raphael FM; Crimson SRL & Anor v Claudia Shoes Pty Ltd & Ors (No 6) [2008] FMCA 108 at paras.13-15 per Riley FM; Singh v Official Trustee in Bankruptcy & Anor [2008] FMCA 521 at para.19 per Lucev FM.

   [41] As to the interests of justice see BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 421 per Gleeson CJ, McHugh and Heydon JJ; [2004] HCA 61 at para.15 per Gleeson CJ, McHugh and Heydon JJ, and as to the interests of the administration of justice as including the interests of the management of justice by the Court of proceedings pending before the Court see Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at para.28 per Lucev FM.

The principle of open justice

1. The conclusion in SZQCY that the principle of “open justice” is not jeopardised by the Court declining to order that the applicant be allowed to appear (whether personally or by video-link) in Court on the hearing of the applicant’s application[42] is not one with which the Court, as presently constituted, and with great respect, agrees.

   [42] SZQCY at para.32 per Smith FM

2. The principle of open justice, that is the demonstration of the correctness and justice of the Court’s determination according to law is one which “must extend to the parties themselves, for they are most affected by the outcome of the case.”[43]  For an applicant to be excluded from appearing in Court on the hearing of their application is to deny them the ability to understand the case as it is put to the Court, and therefore to exclude them from the justice process.

   [43] Gradidge at 417 per Kirby P.

3. For a court to be open to the whole world to attend, save for an applicant whose application is being argued, is “little more than a charade”.[44]

   [44] Gradidge at 425 per Samuels JA.

Applicant not conversant with the English language

1. The conclusion in SZQCY that there is no potential benefit to the administration of justice for an applicant to appear because an applicant is not conversant in the English language squarely raises the second issue in these proceedings, that is, whether an applicant ought to have an interpreter present to assist the applicant, wherever the applicant may be (that is in Court, or in a remote location connected by video or audio-link), and if so or if not, why or why not.  That issue is dealt with below.

Place of filing the application

1. There is implicit in SZQCY a suggestion that the applicant in that matter might have been able to appear in Court if his application had been filed in Perth rather than Sydney.[45]  The suggestion is not the subject of any further explanation.  In the view of the Court, as currently constituted, it is a matter of principle as to whether an applicant ought to appear before the Court at hearing, and, if so, by what means, and whether an applicant ought to have the services of an interpreter.  It is not a matter of logistics or location or cost.  If the Court is of the view that an applicant ought to appear, and ought to have an interpreter present with the applicant during the hearing, it does not matter where the application is filed.  If the filing of an application in a particular location results in a hearing location which is inconvenient or inappropriate, for any reason, it is always open to the Court to:

   a)list the hearing of the matter in a place which is more convenient or more appropriate; or

   b)transfer the matter to another Registry of the Court which is more appropriately located or convenient to hear the application.

   [45] SZQCY at para.34 per Smith FM.

2. For similar reasons to those set out below,[46] the cost of any relocated relisted hearing, or the transfer of any hearing, is not a matter for the Court to consider where the making of any such orders is in the interests of justice or the interests of the administration of justice.

   [46] See paras.51-53 below.

3. Whatever approach is adopted, the location of the Registry in which the application is filed cannot dictate whether an applicant has a right to appear before the Court or whether an applicant ought to be provided with the services of an interpreter.

Appearance of an applicant

1. For reasons set out above the Court is of the view, that in each of these matters, it is:

   a)in the interests of the administration of justice; and

   b)in the interests of justice,

   for each applicant to be able to appear at the final hearing of their application.

Interlocutory hearings

1. In respect of interlocutory hearings different considerations may apply, particularly as the Court, with the consent of the parties, often makes relatively standard orders at a first directions hearings, which orders have already been discussed with an applicant prior to his consent being given to them through his lawyers.

Consideration – other issues

The provision of interpretation services to an applicant

The applicants are in Court

1. In circumstances where each applicant is being brought to the Court for the hearing of their application by the Minister, and as the Court has already found, properly so, as they have a right to attend other than in exceptional circumstances, the question must be asked “what is the purpose of their attending?” and “can that purpose be achieved if, because of a lack of interpretation services, an applicant does not understand the proceedings?”

2. The evident purpose of the applicant being in Court is to afford the applicant procedural fairness consonant with the principles of open justice.  However, that object cannot be achieved, and justice cannot penetrate, into a world where an applicant sits hearing but not understanding, and has no means of understanding, what is happening in relation to their own application before the Court.  To enable an applicant to understand the proceedings, and therefore to be afforded procedural fairness and for the principles of open justice to be met, the proceedings need to be interpreted for an applicant.

3. The suggestion that because these are judicial review proceedings they need not be understood by an applicant has been dealt with above.[47]  However, it is worthwhile further observing that the task of an interpreter goes well beyond that of merely interpreting any evidence which is given to the Court.  As was pointed out in Gradidge an interpreter’s task is not restricted to the evidence giving process and “it must be extended … to appraising a party of what is happening in the court and what procedures are being conducted at a particular time.”[48]  A party who does not speak or understand English is entitled to that further assistance from an interpreter.[49]  It is only in this way that procedural fairness can be afforded to an applicant and the principles of open justice can properly be met.  Whether they are met by an interpreter being in the Court, or being connected by video-link, is a matter for the presiding judicial officer to determine in all of the circumstances.

   [47] See paras.19-20 above.

   [48] Gradidge at 426 per Samuels JA.

   [49] Gradidge at 427 per Samuels JA.

4. In all of the circumstances, the Court is of the view that each applicant ought to be provided with an interpreter in the language nominated by the applicant in their application, for the duration of the hearing of their application, unless the applicant elects otherwise.

Simultaneous or consecutive interpretation

1. In SZQCY it is suggested that an applicant would obtain no benefit by either attending at the hearing or by observing it by video-link.[50]  For reasons set out above the Court, as presently constituted, respectfully disagrees.  This however raises a question as to whether or not interpretation needs to be simultaneous or consecutive.

   [50] SZQCY at para.33 per Smith FM.

2. A consecutive interpretation has the advantage that it would enable interpretation to be provided by video or audio-link from a remote place, thereby not requiring an interpreter to be in Court with the applicant.  It suffers from two disadvantages.  First, whether the interpreter is in Court or in a remote location consecutive interpretation necessitates stop-start proceedings, in that what the speaker says is said, and the speaker stops, while the interpreter interprets, and having done so, the speaker starts again.  In order for consecutive interpretation to be effective it will generally be the case that only short passages of speech are spoken, and then interpreted, before the speaker speaks again.  That is disruptive especially in the context of judicial review cases which generally proceed on the basis of submissions, and which often involve robust dialogue between Counsel and the Court.  Second, consecutive interpretation effectively doubles the length of any hearing.

3. The distinction between simultaneous and consecutive interpreting has been explained as follows:

   Consecutive interpretation means that the interpreter translates after the speaker has finished the communication. This is the most commonly used form of interpretation to interpret a witnesses’ evidence. This form of interpreting requires the interpreter to listen carefully and remember what was said, perhaps even taking written notes to help with the task. Simultaneous interpretation is interpreting almost immediately after a statement is spoken. It is made while the speaker continues to speak. Generally simultaneous interpretation, where it is utilised in immigration proceedings, will be undertaken by the interpreter translating, usually in a whisper to the applicant, what the Tribunal member is saying to other witnesses and where appropriate what other witnesses say. There is no information available about the frequency of the use of simultaneous interpretation.

   Instantaneous translation may become a distraction to the other participants including the Tribunal member, particularly where there is a whispered ongoing translation to the applicant of what is being said. It could also be said that the Tribunal member will put to the applicant any matters of significance that arise from the evidence of other witnesses so that it could not be said that any substantive breach of procedural fairness occurs if there is no simultaneous interpretation of other witnesses’ evidence. There appears to be no case law on the issue of the use of consecutive or simultaneous interpretation or on the issue of interpreting a witnesses’ evidence for the benefit of an applicant but it is an issue that could readily arise as a matter of procedural fairness.[51]

   [51] M Barnett “Mind Your Language Interpreters in Australian Immigration Proceedings” [2006] UWSLawRw 5 (at pages 10 and 11 of the print out).

4. Simultaneous interpretation by an interpreter present in Court has the advantage that it allows an applicant to follow and understand the proceedings as they happen without disrupting the proceedings in Court.  The difficulty of simultaneous interpretation at speed can be accommodated by the Court directing Counsel to slow down, or take very short breaks, without adversely affecting the flow of submission or argument.  If simultaneous interpretation can be achieved it is preferable to consecutive interpretation.

5. Ultimately, the question of whether or not simultaneous or consecutive interpretation is utilised is a matter for the Court.  It is a matter which may also depend upon the availability of interpreters in the location in which the Court hearing is taking place.

Court Interpreter and Translator Policy

1. The Court Interpreter and Translator Policy is not a policy document which derives power or authority from any:

   a)provision of the FM Act, the FMC Rules, or any other relevant legislation or legislative instrument; or

   b)judicial determination of any kind.

2. It is therefore not a policy document binding upon the Court in the exercise of its judicial power.  It is, as is acknowledged within the body of the document, no more than “guidelines”.[52]

   [52] Court Interpreter and Translator Policy, para.1.1.

3. It is however appropriate to make some observations with respect to the Court Interpreter and Translator Policy as it relates to some of the issues which have arisen in relation to these applications.  Firstly, the Court Interpreter and Translator Policy sets out a principle as follows:

   The basic principle of access and equity is that no client of the Court should be disadvantaged in proceedings before the Court or in understanding the procedures and conduct of court business, because of a language barrier or hearing or speech impairment. The two-way process of communication and understanding between the client and the Court may require that the Court engages an interpreter, or on rare occasions a translator.[53]

   [53] Court Interpreter and Translator Policy, para.1.2.

1. The basic expression of principle in the above paragraph is not dissimilar to the principles expressed by the New South Wales Court of Appeal in Gradidge.[54]

   [54] Gradidge at 417-418 and 423-425 per Kirby P and 425-426 per Samuels JA. Regrettably, time does not permit the Court to deal with the question of whether an applicant or respondent in proceedings before the Court is a “client”.

2. In relation to defended hearings the Court Interpreter and Translator Policy says as follows:

   2.4Defended hearings: the Registry Manager or District Registrar is to ensure where practicable that neither the client of the Court, nor the Court shall be disadvantaged by the lack of interpreter services, and should ensure that a an appropriate staff member identifies the need for assistance prior to the hearing. Interpreter services may be authorised in respect of a witness, where this will assist the court in determining the matter. This need should normally be identified at the first court date and when the matter is listed for hearing. Having regard to the impact of this availability on the conduct of the proceedings and its benefit to the Court in the determination of the matter, consultation with a Federal Magistrate or Registrar may be appropriate. Once the hearing has started, the Federal Magistrate, Registrar or Sessional Registrar is ultimately responsible for the decision as to whether an interpreter is needed. If the Federal Magistrate, Registrar or Sessional Registrar determines that an interpreter is no longer required during the course of the proceedings, he/she should formally discharge the interpreter on the record.

   2.5Paragraph 2.4 applies equally to a litigant who is represented by a solicitor and one who is self-represented. However, the Court’s responsibilities do not extend to ensuring that a litigant or client of the Court is able to effectively communicate with her or his solicitor, and the Court should not pay for an interpreter for this purpose.[55]

   [55] Court Interpreter and Translator Policy, paras.2.4 and 2.5.

3. In context, the statement that “the Court should not pay for an interpreter for this purpose”, that purpose being “ensuring that a litigant or client of the Court is able to effectively communicate with her or his solicitor” must properly be read as referring to communications between them outside of any hearing in Court.  If it is intended to apply to the use of an interpreter in court, in relation to applicants who are non-English speaking, in immigration detention, and whose life and liberty are potentially at risk as a consequence of the administrative decision being reviewed judicially by this Court, then the statement is in the view of the Court wrong for the reasons already set out above.

The cost of an interpreter

Who must pay?

1. If the Court, in the exercise if its judicial discretion, orders that an interpreter be provided to be personally present with an applicant in Court, that order must be complied with, because it is the order of the Court, and as a consequence of which it would be necessary for the interpreter services to be provided to enable the Court to be properly executing its functions under the law.  Whatever the cost of that may be, there appears to be no dispute between the parties that it is a cost which the Court must incur.  The Court recognises that the cost of the provision of interpreter services may include the cost of travel and accommodation, in addition to the provision of any Court interpreting services.  There is information put to the Court by the lawyers for the applicants, albeit there is no evidence, that there are interpreters in each of the languages nominated by the applicants in their application who are presently working for the Minister at an immigration detention centre in Darwin.  It might be hoped that some sensible administrative arrangements could be arrived at whereby the services of those interpreters could be made available to the Court, subject, if necessary, to any necessary reimbursement of costs to the Minister.  In the Court’s view no question of conflict would arise in those circumstances given that the interpreters are providing professional services which, generally speaking, do not require them to express any opinion or make any value judgment.

2. If, subsequently, it is thought that, for whatever reason, the incurring of such a cost is not necessary, it is open to the:

   a)Parliament to make any necessary legislative change; or

   b)Court to make any necessary change to the FMC Rules, which are then subject to disallowance by the Parliament,

   to remedy any perceived mischief arising from any increase in the cost of the provision of interpreting services.  But, until that is done, any the order of the Court requiring that an interpreter be provided cannot be avoided on the grounds of cost.  In relation to these applications the cost of the provision of interpreter services must be borne by the Court because, for reasons otherwise set out above, it is both procedurally fair to each applicant and in the proper interests of justice and the administration of justice that an interpreter be provided to each applicant.  Because those reasons relate to the core functions of the Court process, it is appropriate, and seems to be accepted, and to have been traditionally accepted, that it is for the Court to pay for the interpreter.  For the same reasons, the Court agrees with the Minister’s submission that it is not for the Minister to fund the provision of these particular services to its opponent in civil litigation.

Court Interpreter and Translator Policy

1. In relation to the funding of interpreter services the Court Interpreter and Translator Policy says as follows:

   Availability of funds: a Registry shall not refuse to fund access to an interpreter in accordance with these guidelines for the reason that sufficient funds are not available.[56]

   For reasons set out above the policy is not binding on the Court acting judicially.  However, the policy accords with the views expressed by the Court above, as to who ought to pay for the interpreter.

   [56] Court Interpreter and Translator Policy, para.3.1.

Section 72 of the FM Act

1. It is submitted on behalf of the applicants that the Court has a broad power under s.72 of the FM Act to make such orders as it thinks fit in relation to the payment of expenses, including those of interpreters, in connection with a final hearing of these proceedings. Section 72(1) provides that “in connection with”:

   a)“the giving of testimony”;[57] or

   b)“the appearance of a person”;[58] or

   c)“the making of submissions”,[59]

   “by video link or audio link”, and for the Court to “make such orders” as the Court “thinks just for the payment of expenses incurred in connection with”[60] the giving of that testimony, the appearance of a person or the making of submissions.

   [57] FM Act, s.72(1)(a).

   [58] FM Act, s.72(1)(b).

   [59] FM Act, s.72(1)(c).

   [60] FM Act, s.72(1).

2. Section 72 appears in Part 5 of the FM Act which concerns the use of video and audio-links. It is clear that the expenses concerned are the expenses incurred in relation to the use of the video or audio-link, not the cost of expenses of the use of an interpreter per se. Thus, s.72(1) can be utilised to make an order with respect to the cost of the expense of a video or audio-link where an interpreter appears by video or audio-link, but it does not include the cost of the interpreter services.

Conclusion – paying the interpreter

1. The Court finds that it is for the Court to pay for the provision of Court ordered interpretation services.

Conclusion and orders

1. For the reasons set out above the Court has concluded that:

   a)each applicant has the right to appear in Court on the final hearing of their application, either in person or by video-link;

   b)unless an applicant elects otherwise, an applicant ought to be provided with an interpreter in the language nominated in the applicant’s application, to be personally present with the applicant, to interpret for the applicant at the hearing of the application in Darwin, and, if, and only if, for reasons other than cost, the interpreter is unable to be personally present with the applicant to interpret for the applicant at the hearing of the application in Darwin, then the Court must provide an interpreter in the language nominated in the application, to appear by video-link, to interpret for the applicant at the hearing of the application in Darwin; and

   c)the Court must meet the cost of the provision of the interpreter services.

2. Therefore, in each of the applications there will be orders in the following terms:

   a)That, unless the applicant elects otherwise, a Registrar of the Court in the Darwin Registry:

   i)must provide an interpreter in the language nominated in the application, to be personally present with the applicant, to interpret for the applicant at the hearing of the application in Darwin; and

   ii)if, and only if, for reasons other than cost, the interpreter is unable to be personally present with the applicant to interpret for the applicant at the hearing of the application in Darwin, then must provide an interpreter in the language nominated in the application, to appear by video-link, to interpret for the applicant at the hearing of the application in Darwin.

3. The Court has power to make such orders as part of its implied incidental powers necessarily incidental to its express powers.[61]

   [61] Skipworth v State of Western Australia & Ors (No 2) (2008) 218 FLR 16 at 27 per Lucev FM; [2008] FMCA 544 at para.27 per Lucev FM.

4. The Court will hear the parties as to costs.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: 

Date:  10 June 2011