Page 3152 - Week 11 - Wednesday, 11 September 1991
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pointed out, statutory detainees are not characterised as defendants. Usually, they have not been charged with an offence such as to attract, under section 68 of the Federal Judiciary Act, the laws of the State or Territory as being the applicable law for the conduct of the proceedings. Thus, there remains a situation where Federal detainees with an inadequate knowledge of English or capacity are not guaranteed the right to an interpreter.
This Assembly cannot proceed unilaterally because section 27 of the self-government Act does not allow us to bind the Crown in right of the Commonwealth without express regulatory approval. Whilst this argument might conceivably apply to the Australian Federal Police, despite our legislative competence over the Crimes Act, it is implicit in our policing arrangement that the Federal Government would make any necessary regulation without delay. The proposed amendment to the Magistrates Court Act will extend to cover young persons before the court under Children's Services Act proceedings because section 22 of that Act adopts the provisions of the Magistrates Court Act Rules and Regulations.
On the role of interpreters, section 54AA defines interpreter to mean "an interpreter accredited with the National Accreditation Authority for Translators and Interpreters Limited or any other competent interpreter". The National Accreditation Authority for Translators and Interpreters, or NAATI, was established not only for the accreditation of interpreters; NAATI, with the Australian Institute of Interpreters and Translators, seeks to establish national guidelines on the use of interpreters in the Australian legal system to ensure that qualified independent interpreters are reasonably available in both metropolitan and rural areas and are available to the accused in criminal proceedings free of charge; and that interpreters possess linguistic competence, a sufficient understanding of ethnic community cultures and social customs, and an understanding of court procedures and legal terminology in the Australian context and, desirably, in that of the culture of the language in which they are interpreting. Above all, interpreters must be independent of the litigants and understand the proper role of the interpreter, including the need for impartiality and confidentiality.
On the issue of legal interpreting ethics, I draw members' attention to an article by Mr Justice Young in the December 1990 Australian Law Journal, volume 64, page 761. There are arguments that the role of the interpreter extends to cultural awareness and that a true interpreter has a cultural affinity with the language he or she is interpreting. This is graphically illustrated by procedures now in the Northern Territory for Aboriginal detainees. This debate is far from settled, and there are
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