Page 3151 - Week 11 - Wednesday, 11 September 1991
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the law are a matter not merely of recognising individual words but also of comprehending the meaning of those words in context. An interpreter provides a conduit to comprehension and, in consequence, real access to justice. Interpreters are a precious element in our democratic system.
On police interviews, the Crimes (Amendment) Bill obliges a police officer to put his or her mind to the language capacity of a person being questioned. I foreshadow amendments to the Bill so that it correlates with the Magistrates Court (Amendment) Bill. Workloads have prevented me from finalising late drafting amendments. The amendment does not apply to persons in custody under the Motor Traffic (Alcohol and Drugs) Act 1977 in connection with an offence in Part III of that Act. This includes offences of strict liability arising from scientific breath analysis.
Sometimes the police may still lay the traditional charge of "driving under the influence". This may occur when there is some doubt as to the operational capacity of the breath testing machine, or doubt as to whether the statutory time limit for testing has been complied with. However, the requirement upon the police to provide an interpreter does not extend to any questioning relating to a DUI charge where there are practical problems of determining capacity.
The proposed section 354, subsection (1), becomes operative when a person is in custody - a concept about which there is ample case law. There are, however, some anomalies under Federal laws relating to migration, quarantine and the like, where people are detained without criminal charge. For example, under the Migration Act 1958, refugees unprocessed at the barrier, illegal entrants and deportees may be detained in custody by, among others, police officers. Such custody is not necessarily related to a suspected criminal offence but is in relation to a statutory status.
Police conducting these processes on behalf of the Department of Immigration should apply the amended rule, particularly in circumstances where a detainee may make admissions which subsequently become the basis for prosecution. However, Federal public servants, mainly migration officers, do much of the detention work under the migration law. They do not come within the description of police officers and, as such, are not caught by this amendment. It is unsatisfactory that this statutory protection has not been introduced into the Migration Act by a Federal department so vitally involved in anti-discrimination laws and multicultural policy.
With respect to the Magistrates Court, the Magistrates Court (Amendment) Bill expresses the requirement to provide an interpreter in relation to a defendant, including a respondent to domestic violence proceedings. As I have
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