Supreme Court (Chapter I Interpreters Amendment) Rules 2020 (Vic)

Supreme Court (Chapter I Interpreters Amendment) Rules 2020

S.R. No. 29/2020

TABLE OF PROVISIONS

Rule  Page

1Object

2Authorising provisions

3Commencement

4Principal Rules

5New Rule 43.02.1

6New Order 44A

7New Form 44AA

═════════════

Endnotes

STATUTORY RULES 2020

S.R. No. 29/2020

Supreme Court Act 1986

Supreme Court (Chapter I Interpreters Amendment) Rules 2020

The Judges of the Supreme Court make the following Rules:

1Object

The object of these Rules is to amend Chapter I of the Rules of the Supreme Court to provide for rules based on the Model Rules and Code of Conduct set out in the Recommended National Standards for Working with Interpreters in Courts and Tribunals developed by the Judicial Council on Cultural Diversity.

2Authorising provisions

These Rules are made under section 25 of the Supreme Court Act 1986 and all other enabling powers.

3Commencement

These Rules come into operation on 1 June 2020.

4Principal Rules

In these Rules, the Supreme Court (General Civil Procedure) Rules 2015[1] are called the Principal Rules.

5New Rule 43.02.1

After Rule 43.02 of the Principal Rules insert—

"43.02.1   Affidavit where interpreter required

(1)Where an affidavit is made which requires an interpreter, an accredited interpreter shall include in the jurat of the affidavit, or shall swear or affirm in a separate affidavit, the matters set out in paragraph (2).

(2)The accredited interpreter must verify that—

(a)before sight translating the affidavit, the interpreter—

(i)had read the code of conduct in Form 44AA and agreed to be bound by it; and

(ii)had been given an adequate opportunity to prepare to sight translate the affidavit;

(b)the interpreter sight translated the entire affidavit to the deponent and the deponent then—

(i)informed the person before whom the affidavit is sworn or affirmed through the interpreter that the deponent had understood the interpreter and agreed with the entire contents of the affidavit; and

(ii)swore or affirmed the affidavit in the presence of the interpreter.

(3)In this Rule, accredited interpreter has the same meaning as it has in Rule 44A.01.

Note

See also the requirements in Rule 44A.06.".

6New Order 44A

After Order 44 of the Principal Rules insert—

"Order 44A—Interpreters

44A.01Definitions

In this Order, unless the context or subject matter otherwise requires—

accredited interpreter, in relation to an other language means an interpreter who is accredited, registered or recognised as an interpreter for the language by a recognised agency;

code of conduct means the court interpreters' code of conduct in Form 44AA;

interpret means the process by which spoken or signed language is conveyed from one language (the source language) to another (the target language) orally;

other language means a spoken or signed language other than English;

recognised agency means the National Accreditation Authority for Translators and Interpreters (NAATI);

sight translate means the process by which an interpreter or a translator presents a spoken interpretation of a written text;

translate means the process by which written language is conveyed from one language (the source language) to another (the target language) in written form.

44A.02When interpreters may be engaged

(1)If the Court is satisfied that a witness cannot understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put to the witness, the witness may give—

(a)oral evidence in the other language that is interpreted into English by an interpreter in accordance with this Order; or

(b)evidence by an affidavit or a statement in English that has been sight translated to the witness by an interpreter in accordance with Rule 44A.06.

Note

Section 30 of the Evidence Act 2008 provides that a witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.

(2)The party calling a witness requiring an interpreter is responsible for engaging an interpreter who meets the standards and requirements under this Order.

(3)In any criminal proceeding, the prosecuting agency is responsible for engaging an interpreter who meets the standards and requirements under this Order.

(4)If the Court is satisfied that a party cannot understand and speak the English language sufficiently to enable the party to understand and participate in the proceeding, the Court shall permit the party to use an interpreter who meets the standards and requirements under this Order.

44A.03Who may act as an interpreter

(1)A person shall not act as an interpreter in a proceeding unless the person—

(a)is currently an accredited interpreter for the spoken or signed language other than English concerned or otherwise satisfies the Court that the person is qualified to act as an interpreter; and

(b)has read and agreed to comply with the code of conduct; and

(c)takes an oath or affirms to interpret accurately to the best of the person's ability.

(2)A person shall not act as an interpreter if the person—

(a)is or may become a party to, or a witness in, the proceeding;

(b)is related to, or has a close personal relationship with, a party or a member of the party's family, or with a witness or potential witness;

(c)has or may have a financial or other interest of any other kind in the outcome of the proceeding, other than an entitlement to a reasonable fee for the services provided by the interpreter in the course of the person's engagement or appointment; or

(d)is or may be unable to fulfil the person's duty of accuracy or impartiality under the code of conduct for any reason including, but not limited to, personal or religious beliefs or cultural or other circumstances.

(3)A person acting as an interpreter shall—

(a)cease to act as an interpreter if the person becomes aware during a hearing of a matter referred to in paragraph (2); and

(b)immediately disclose the matter to the Court.

(4)Despite paragraphs (1) to (3), if it is in the interests of justice, the Court may give permission to a person to act as an interpreter despite not complying with the requirements of those paragraphs if, to the extent practicable—

(a)the Court is satisfied that the person is able to interpret and, if necessary, sight translate accurately to the level the Court considers satisfactory in all the circumstances from the other language into English and from English into the other language; and

(b)the person takes an oath or affirms to interpret accurately to the best of the person's ability; and

(c)the Court is satisfied that the person understands and accepts that, in acting as an interpreter, the person—

(i)is not the agent, assistant or advocate of the witness or the party for which the person is to act as an interpreter; and

(ii)owes a paramount duty to the court to be impartial and accurate to the best of the person's ability; and

(d)the Court directs that the evidence and interpretation be sound recorded for spoken languages and video recorded for signed languages; and

(e)the person is over the age of 18 years.

44A.04Functions of interpreters

(1)Unless the Court otherwise orders, an interpreter shall—

(a)interpret questions and all other spoken communications in the conduct of the proceeding for the party from English into the other language and from the other language into English; and

(b)subject to paragraph (2), sight translate, whether before or during the course of the witness' evidence, documents shown to the witness.

(2)An interpreter may refuse to sight translate if—

(a)the interpreter considers that the interpreter is not competent to do so; or

(b)the task is too onerous or difficult by reason of the length or complexity of the text.

(3)Unless the Court otherwise orders, an interpreter may not assist a party or the party's legal practitioner in the conduct of the proceeding (including a hearing) except by—

(a)interpreting questions and other spoken or signed communications in connection with the proceeding from English into the other language and from the other language into English; or

(b)sight translating documents in connection with the proceeding from English into the other language and from the other language into English.

44A.05Code of conduct

(1)An interpreter shall comply with the code of conduct.

(2)Unless the Court otherwise orders, as soon as practicable after an interpreter is engaged or appointed for a proceeding, a copy of the code of conduct is to be provided to the interpreter by—

(a)if an interpreter is engaged by a party, the party; or

(b)as the Court otherwise directs.

(3)Unless the Court otherwise orders, a witness may not give evidence using an interpreter unless the Court is satisfied that the interpreter has read the code of conduct and agreed to be bound by it.

44A.06Translated evidence

(1)Unless the Court otherwise orders, a party seeking to rely on a translated affidavit who requires an interpreter is not entitled to rely on the affidavit unless it complies with Rule 43.02.1.

(2)Unless the Court otherwise orders, a party seeking to rely on a translated statement of a witness who requires an interpreter is not entitled to rely on the statement unless an accredited interpreter has verified that—

(a)before sight translating the statement to the witness, the interpreter—

(i)had read the code of conduct and agreed to be bound by it; and

(ii)had been given an adequate opportunity to prepare to sight translate the statement;

(b)the interpreter sight translated the entire statement to the witness and the witness then—

(i)informed the person before whom the statement is made through the interpreter that the witness had understood the interpreter and agreed with the entire contents of the statement; and

(ii)where applicable, signed the statement in the presence of the interpreter.

44A.07Court may give directions concerning interpreters

Without limiting any other power of the Court, the Court may, at any time, give directions concerning all or any of the following matters, having regard to the nature of the proceeding (including the type of allegations made and the characteristics of the parties and witnesses)—

(a)any particular attributes required or not required for an interpreter, including, but not limited to, gender, age or ethnic, cultural or social background so as to accommodate any cultural or other reasonable concerns of a party or the witness;

(b)the number of interpreters required in any proceeding and whether relay interpreting should be used;

(c)establishing the expertise of an interpreter;

(d)the steps to be taken to obtain an interpreter who is an accredited interpreter for the other language concerned or is otherwise qualified to act as an interpreter;

(e)the steps to be taken before permission under Rule 44A.03(4) is given;

(f)what information concerning the proceeding, may be provided to a person in advance of any hearing to assist that person to prepare to act as an interpreter at that hearing, including, but not limited to, pleadings, affidavits, lists of witnesses and other documents;

(g)when, in what circumstances and under what (if any) conditions the information referred to in paragraph (f) may be provided;

(h)whether an interpreter is to interpret the witness' evidence consecutively, simultaneously or in some other way;

(i)other resources, such as dictionaries or other reference works that an interpreter may require to consult in the course of acting as an interpreter;

(j)the length of time for which an interpreter should interpret during a hearing without a break;

(k)security for an interpreter including, where necessary, arrangements to preserve the anonymity of the interpreter;

(l)practical matters concerning an interpreter, such as seating for and the location of the interpreter;

(m)the disqualification, removal or withdrawal of an interpreter, including on the application of the interpreter or any party to the proceeding or on the Court's own motion;

(n)the payment of interpreters;

(o)any other direction the Court considers appropriate.

7New Form 44AA

After Form 44A of the Principal Rules insert—

"Form 44AA—Court interpreters' code of conduct

Rule 44A.01

COURT INTERPRETERS' CODE OF CONDUCT

Application of code

1.This code of conduct applies to any person (the interpreter) who, whether or not for fee or any other reward, is engaged, appointed, volunteers or otherwise becomes involved in a proceeding or proposed proceeding to act as an interpreter by interpreting or sight translating from any spoken or signed language (the other language) into English and from English into the other language for any person.

General duty to the Court

2.An interpreter has an overriding duty to assist the Court impartially.

3.An interpreter's paramount duty is to the Court and not to any party to or witness in the proceeding, including the person retaining or paying the interpreter.

4.An interpreter is not an advocate, agent or assistant for a party or witness.

Duty to comply with directions

5.An interpreter must comply with any direction of the Court.

Duty of accuracy

6.An interpreter must at all times use the interpreter's best judgment to be accurate in the interpreter's interpretation or sight translation.

7.In this code, accurately, in relation to interpreting or translating, means optimally and completely transferring the meaning of the other language into English and of English into the other language, preserving the content and intent of the other language or English (as the case may be) without omission or distortion and including matters that may be considered inappropriate or offensive.

8.If an interpreter considers that the interpreter's interpretation or sight translation is or could be in any way inaccurate or incomplete or requires qualification or explanation (including, without limitation, where the other language is ambiguous or otherwise unclear for any reason), then the interpreter must—

(a)   immediately inform the party who engaged them and provide the necessary correction, qualification or explanation to that party; and

(b)   if the evidence is being given or was given in court, immediately inform the Court and provide the necessary correction, qualification or explanation to the Court.

Duty of impartiality

9.An interpreter must at all times act impartially so as to be without bias in favour of or against any person including but not limited to the witness whose evidence the interpreter is interpreting, the party who has engaged or is remunerating the interpreter or any other party to or person involved in the proceeding or proposed proceeding.

10.Unless the Court otherwise orders, an interpreter must not accept an engagement or appointment to act as an interpreter in relation to a proceeding or proposed proceeding if the interpreter—

(a)   is or may become a party or a witness; or

(b)   is related to, or has a close personal relationship with, a party or a member of the party's family, or with a witness or potential witness; or

(c)   has or may have a financial or other interest of any other kind in the outcome of the proceeding or proposed proceeding (other than an entitlement to a reasonable fee for the services provided by the interpreter in the course of the interpreter's engagement or employment; or

(d)   is or may be unable to fulfil the interpreter's duty of accuracy or impartiality for any reason including, without limitation, personal or religious beliefs or cultural or other circumstances.

11.Other than carrying out an engagement or appointment as an interpreter, the interpreter must not provide any other assistance, service or advice (including by way of elaboration) to—

(a)   the party, legal practitioner or other person who has engaged them; or

(b)   any witness or potential witness, in relation to the proceeding or proposed proceeding.

Duty of competence

12.An interpreter must only undertake work the interpreter is competent to perform in the languages for which the interpreter is qualified by reason of the interpreter's training, qualifications or experience.

13.If it becomes apparent in the course of a matter that expertise beyond the interpreter's competence is required, the interpreter must inform the Court immediately and work to resolve the situation, either withdrawing from the matter or following another strategy acceptable to the Court.

Confidentiality

14.Subject to compulsion of law, an interpreter must keep confidential any information that the interpreter acquires in the course of the engagement or appointment as an interpreter (including any communication subject to client legal privilege) unless—

(a)   that information is in, or comes into, the public domain other than by an act of the interpreter in breach of this duty of confidentiality; or

(b)   the beneficiary of the client legal privilege has waived that privilege.".

Dated:   30 April 2020

ANNE FERGUSON, C.J.

CHRISTOPHER MAXWELL, P.

DAVID F. R. BEACH, J.A.

EMILIOS KYROU, J.A.

STEPHEN KAYE, J.A.

R. NIALL, J.A.

KIM HARGRAVE, J.A.

TERRY FORREST, J.A.

KARIN EMERTON, J.A.

ELIZABETH HOLLINGWORTH, J.

ANTHONY CAVANOUGH, J.

M. L. SIFRIS, J.

PETER ALMOND, J.

JOHN R. DIXON, J.

C. MACAULAY, J.

G. J. DIGBY, J.

JAMES D. ELLIOTT, J.

T. J. GINNANE, J.

MELANIE SLOSS, J.

M. J. CROUCHER, J.

CHRISTOPHER W. BEALE, J.

MICHAEL McDONALD, J.

RITA INCERTI, J.

P. J. RIORDAN, J.

JANE A. DIXON, J.

A. J. KEOGH, J.

MICHELLE QUIGLEY, J.

J. R. CHAMPION, J.

M. N. CONNOCK, J

MELINDA RICHARDS, J

KEVIN J. A. LYONS, J.

LESLEY TAYLOR, J.

S. J. MOORE, J.

ANDREW J. TINNEY, J.

JACINTA FORBES, J.

L. M. NICHOLS, J.

═════════════

Endnotes

[1] Rule 4: S.R. No. 103/2015. Reprint No. 2 as at 2 January 2018. Reprinted to S.R. No. 127/2017. Subsequently amended by S.R. Nos 32/2018, 33/2018, 58/2018, 131/2018, 132/2018, 168/2018, 19/2019, 21/2019, 38/2019, 73/2019, 90/2019, 122/2019 and 124/2019.