Interpreters and fairness in administrative hearings.

• Jurisdiction: Australia
• Author: Groves, Matthew
• Date: 01 January 2017

CONTENTS I Introduction II The Nature of Language Interpretation III The Accreditation and Regulation of Interpreters IV Flexibility, Fairness and Interpreters V Common Law Fairness and Standards of Interpreting VI The Limits of Fairness VII Interpreters and Migration Tribunal Hearings VIII Judicial Approaches to Migration Tribunal Hearings: Perera and Beyond IX Is the Common Law Approach Different--Or Is SZRMQ Wrong? X Conclusion I INTRODUCTION

The steady expansion of the duty to observe the requirements of procedural fairness has seen that doctrine extend to virtually all administrative decisions. Procedural fairness is now presumed to apply to the exercise of statutory powers which may affect the rights or interests of a person. (1) The scope of that principle is amplified by the increasingly wide approach the courts have taken to the rights or interests that are protected by procedural fairness. (2) There are some exceptions to these presumptions because the cases which have expanded the scope of the duty to act fairly have also made clear the duty can be narrowed or even excluded if the legislature does so in suitably clear language. (3) The expansion and entrenchment of procedural fairness has not resolved all questions that surround the doctrine. Accepting that fairness applies is one thing. Determining what it requires in each case is quite another.

This article examines one area where the precise requirements of natural justice remain unclear, namely when and why fairness may require that people have an oral interpreter in a specific area of administrative hearings--those of migration tribunals. (4) The variable nature of the requirements of fairness means that there is not, and cannot be, a single or rigid rule governing this issue in administrative hearings. The courts have instead devised a number of factors to determine whether an interpreter is required. The courts have also made clear that, where an interpreter is required, the needs of fairness are satisfied if the standard of translation is adequate rather than perfect. A requirement of adequacy rather than perfection might seem counterintuitive. How can fairness simultaneously require a procedural right but be satisfied when that right is not provided to the fullest extent possible?

The article examines that question in the following order. The first Part explain the nature of interpretation and the flexible requirements of fairness. The article argues that the inexact or flexible rules of fairness can be given some structure by an understanding of the purpose of an interpreter in administrative proceedings. The next Parts explain the standards devised in recent cases about interpreting in hearings conducted by migration tribunals. (5) This article has particular focus on migration cases, a notable feature of which is that they purport to determine questions about the adequacy of interpretation as ones of statutory interpretation and jurisdictional error. It will be argued, however, that approach provides little more than a gloss on the longstanding question: when the hearing is viewed as a whole, was it fair?

II THE NATURE OF LANGUAGE INTERPRETATION

There is no single or simple definition of language interpretation but the two main forms used in administrative and other hearings are consecutive and simultaneous interpreting. (6) In simultaneous interpreting, an interpreter translates a conversation as it occurs. This mode is typically used by interpreters when they are translating for the benefit of a person who is not speaking at that time but needs to hear what others say as it is being said. This process has been explained by federal standards used in the United States as requiring interpreters 'to listen, comprehend, translate, and reproduce a speaker or signer's message while the speaker or signer continues to speak or sign, typically lagging a matter of seconds behind'. (7) By contrast, consecutive interpreting involves a level of delay, so translation is typically done after a statement, question or answer is spoken. The interpreter 'conveys the original message into the target language after the speaker has paused, such as in 'the "question and answer" mode in which the speaker completes a statement and the interpreter begins to interpret after the statement is completed.' (8) This process is typically used in administrative and other hearings when the person who requires an interpreter is speaking.

Whatever the method of interpreting, it is generally agreed that meaningful or effective interpretation is more than a mechanical exercise of translation. (9) Professor Hale has explained that:

There is still a naive assumption that as long as someone speaks two languages (to whatever degree of competence) and swears on oath to interpret faithfully, quality will be guaranteed. This misconception is perpetuated by the belief that interpreting is a simple word-matching exercise ... (10)

To conceive of interpretation as a form of word-matching diverts attention from the important aspects of evidence that can be lost in interpretation. The problem arises from a subtle distinction of perception which arises between witnesses and parties who use interpreters and those who do not. Parties and witnesses who do not use interpreters are judged on their own words when they give evidence, but those whose evidence is received through an interpreter are essentially judged on the words used by the interpreter. (11) One American commentator explained:

No matter how accurate the interpretation is, the words are not the defendant's, nor is the style, the syntax, or the emotion. Furthermore, some words are culturally specific and, therefore, are incapable of being translated. Perfect interpretations do not exist, as no interpretation will convey precisely the same meaning as the original testimony. (12) These issues were recently illustrated in New South Wales Crime Commission v Sun, (12) where Adamson J ordered a trial be aborted due to apparent errors in translation. The trial involved two defendants. One gave evidence in English. The other gave evidence through a Mandarin interpreter. Counsel for the latter defendant claimed that several of his client's answers were wrongly prefaced with the remarks 'well anyway' by the interpreter, which made the defendant appear unconcerned and therefore unreliable. (14) The question was not simply whether the words used by the interpreter were accurate but whether they conveyed the emphasis the defendant wished to make. Adamson J concluded that the words used by the interpreter and the impression they conveyed were sufficiently different to what the defendant intended that the trial should be aborted. (15) His Honour accepted translation was 'both a skill and an art' that was difficult to perform 'instantaneously in a court room' but noted that the nuance of the words chosen by an interpreter 'is important as is choice of words, both for sense, context and flavour'. (16) Such reasoning confirms Hale's argument that there is much more to interpretation than 'word-matching' because the interpolation of apparently innocuous words or expressions can have significant and unforeseen consequences.

Inaccuracy may be an inevitable possibility when interpreters are used because even the best interpreter may not be able to convey completely what the interpreted person has said. So long as an interpreter is the conduit between the person who speaks and the person who listens, the dangers of inaccuracy or incomplete understanding may not be able to be eradicated from the interpretive process. If so, interpretation may be best judged by the extent to which it can minimise rather than completely remove those dangers. This approach seemed evident in the influential case of Perera v Minister for Immigration and Multicultural Affairs ('Perera'), (17) where Kenny J considered the requirement of adequate interpretation in a hearing of the Refugee Review Tribunal ('RRT'). Her Honour explained that:

The function of an interpreter in the Tribunal (as in a court) is to place the non-English speaker as nearly as possible in the same position as an English speaker. In other words, an interpreter serves to remove any barriers which prevent or impede understanding or communication. An interpreter provides the means for communication between the applicant, the Tribunal and other participants in the Tribunal hearing, in cases where the applicant's own linguistic capacities are not, on their own, sufficient to that end. (18) This passage invites several comments. First, the idea that interpreters should remove barriers draws attention to the subtle point that interpretation is not limited to ensuring that the words of an affected person are heard and understood. It is equally important that interpreters ensure that affected people understand what is said by others. (19) Secondly, her Honour's suggestion that interpreting is intended to place people who require an interpreter 'as nearly as possible' (20) in the same position as those who do not implies that differences will always remain between those whose evidence is received through an interpreter and those whose evidence is not. That possibility may explain why the courts have accepted that fairness requires adequate rather than perfect interpretation because it implicitly acknowledges the deeper problem of equality by suggesting that people who require an interpreter may never be in the same position as those who do not. (21) Thirdly, Kenny J did not equate effective interpreting with achieving actual understanding between the person whose words are being interpreted and the decision-maker to whom those remarks are directed. If the goal of interpretation is simply to place the interpreted person 'as nearly as possible' in the position of someone who does not need an interpreter, the interpreted person might, at best, be understood no more or no less than any other person...