Page 3155 - Week 11 - Wednesday, 11 September 1991
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particularly be so if the witness is not very literate even in his/her own native language. In the end the matter has to be decided by the court in its discretion.
In 1989, the New South Wales Court of Appeal again confirmed that at common law there is no right to an interpreter.
The amendments proposed to the Magistrates Court Act oust this outdated common law rule in favour of a statutory instruction to magistrates not to hear and determine proceedings unless a competent interpreter is present to assist the defendant. In proposing this provision, I have gone no further than what the Australian Law Reform Commission proposed in its report No. 38, namely:
... that a witness shall be entitled to an interpreter unless the court orders otherwise. Interpreters should be able to be used for part only of the evidence of a witness.
I have not adopted the other recommendation of the ALRC, namely, that "the court should be able to stop the use of an interpreter at any time".
I base this judgment on the enlightened decision of the New South Wales Court of Appeal in Gradidge v. Grace Brothers - reported in the Federal Law Reports, 1989, volume 93, page 414 - which overruled the decision of a judge who ordered a deaf sign interpreter to cease interpreting. The court held that, once satisfied of the need for an interpreter, such provision should not be unilaterally withdrawn. Accordingly, the amendment in the Bill before the house stipulates that, once having been satisfied that the defendant or respondent does not have an adequate knowledge of English, the magistrate cannot withdraw use of an interpreter during those proceedings.
Inherent powers of the courts may ensure procedural fairness in any event, and I must recognise that. I also wish to recognise that magistrates of the Canberra court invariably go to considerable lengths to ensure that the interests of non-English speaking defendants and respondents and persons with physical and intellectual disabilities are protected. Nevertheless, the move to natural justice in our multicultural community requires the express reversal of the common law rule.
I turn now to the ACT Supreme Court. Members may note that these amendments do not include the Supreme Court of the ACT. This is because that court and its administering legislation, the Supreme Court Act, have not been transferred to the legislative competence of this Territory. In that regard, I regret the manner in which the present Government has not proceeded with arrangements for the early transfer of that court to this Territory. Although more than 95 per cent of all criminal matters in
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