The role of Australian Qualified Bilingual Lawyers

14 Apr 2023 Yin Chen and Anthony Song

Snapshot

Australia prides itself on being a multicultural country, however our legal system is monolingual.
Australian Qualified Bilingual Lawyers actively use non-English languages for the purpose of providing legal services.
Australian Qualified Bilingual Lawyers play an important role in promoting access to justice for all Australians.

Australia is a country that prides itself on its multiculturalism, and for good reason. Its population is made up of people from over 200 different ethnic backgrounds, speaking over 300 languages. According to the 2021 census, 27.6 per cent of Australians (and nearly half of their parents) were born overseas and 22.3 per cent spoke a language other than English at home (with Mandarin being the most common). The result is a rich tapestry of traditions, languages and cultures.

However, with diversity comes complexity. The sheer number of languages spoken in Australia presents a challenge for policymakers, educators and employers. Issues around social integration and cohesion, as well as ongoing concerns about discrimination and inequality, have become hotly debated. Moreover, despite such multiculturalism, ultimately our legal system is monolingual. This is where Australian Qualified Bilingual Lawyers (‘AQBLs’) come in — that is, lawyers who actively use non-English languages for the purpose of providing legal services.

In this article, we will discuss the significance of diversity in Australia’s legal profession, focusing on the valuable role AQBLs play in promoting access to justice for all Australians. We will examine the unique benefits that AQBLs bring to clients, the legal profession, as well as the opportunities and challenges they may face in practice. We provide this information to both encourage monolingual lawyers to consider the possibility of learning another language, but also to share some insights for existing AQBLs and their current practice.

The current legal market

According to the Law Society’s 2021 Annual Profile of Solicitors in NSW report, 29 per cent of NSW solicitors were born overseas, with two-fifths of those born in Asia. Despite this, as reported by the Asian Australian Lawyers Association in 2015, Asian Australians accounted for only 0.8 per cent of the judiciary, 1.6 per cent of barristers and 3.1 per cent of law firm partners. The stark lack of diversity in the upper echelons of the profession has often been referred to as a ’bamboo ceiling’. The situation is even more pronounced for our First Nations people, with only 1 per cent of solicitors identifying as Aboriginal or Torres Strait Islander despite representing approximately 3.4 per cent of the population. With over one-fifth of Australians speaking a language other than English at home, there is a clear dissonance in the number of AQBLs and our relative population.

As a solution, it has become common parlance today to argue that technology could serve to replace the role of professionals, including both translators and lawyers. However, technology is often overestimated in the short term and underestimated in the long term. While it may be that AI models will reach parity, the technical knowledge, advocacy and soft skills (the competencies that contribute to how people know and manage themselves, as well as their relationships with others) of lawyers and judges cannot be automated. Far from just a conduit of black-letter legal advice, lawyers play important roles as trusted advisors and counsel. In the context of a non-English speaking client, while technology may help spit out applications of legal principles or translate swathes of documents – ultimately the non-English speaker remains isolated in the context of their legal proceedings. When left confused and wanting nothing more than to understand their situation clearly, lawyers provide the essential emotional support, peace of mind and empathy that is so sorely desired. Indeed, it is this deep client empathy that is what clients want and value most from lawyers. For non-English speaking clients, AQBLs are best positioned to provide just that with their linguistic and cultural understandingAustralia is a country that prides itself on its multiculturalism, and for good reason. Its population is made up of people from over 200 different ethnic backgrounds, speaking over 300 languages. According to the 2021 census, 27.6 per cent of Australians (and nearly half of their parents) were born overseas and 22.3 per cent spoke a language other than English at home (with Mandarin being the most common). The result is a rich tapestry of traditions, languages and cultures.

However, with diversity comes complexity. The sheer number of languages spoken in Australia presents a challenge for policymakers, educators and employers. Issues around social integration and cohesion, as well as ongoing concerns about discrimination and inequality, have become hotly debated. Moreover, despite such multiculturalism, ultimately our legal system is monolingual. This is where Australian Qualified Bilingual Lawyers (‘AQBLs’) come in — that is, lawyers who actively use non-English languages for the purpose of providing legal services.

The current legal market

Australian Qualified Bilingual Lawyers can… navigate cross-cultural situations better, accounting for cultural nuances to ensure the delivery of a service that aligns with the clients’ needs and values.

Benefits for clients

AQBLs can benefit clients with (i) improved communication; (ii) improved quality/efficiency of service; and (iii) enhanced social justice.

Improved communication with clients

The main advantage of AQBLs is that they can communicate more effectively with clients who speak the same language. Speaking, taking instructions or explaining legal principles in a client’s native or preferred language can lead to better understanding, more personalised service, and faster trust and rapport. More complex legal concepts and strategies can be communicated (such as equitable estoppel, frustration, marshalling etc), better outcomes can be reached, and higher satisfaction levels can be attained. Conversely, where there is a language gap, lawyers may not be able to provide clear explanations of actions or legal strategy, leading to clients feeling uncertainty, mistrust, and worry, which could lead to the eventual breakdown of the lawyer-client relationship.

AQBLs can also navigate cross-cultural situations better, accounting for cultural nuances to ensure the delivery of a service that aligns with the clients’ needs and values. For example, doing business in Asia relies heavily on relationships of trust and confidence, while comparatively the Anglo view is often short term. One practical impact of this may be that Chinese clients will primarily only meet face-to-face. Within meetings, other cultural norms may persist including variances in eye contact (subverting the eyes might be viewed as a sign of deference or respect in some cultures, or alternatively as a reflection of doubt, dishonesty or avoidance in others) or the use of silence will vary.

For disadvantaged clients, such as migrants who face significant barriers to English proficiency (whether from age, skills or family circumstances etc) — AQBLs can also assist with access to justice. They can dismantle the structural impediments that language minorities encounter in their interactions with courts, decision makers and the legal system. They are also best placed to dispel misconceptions about the Australian legal system which may have arisen from various narratives shared in immigrant circles or local networks. Sometimes ‘foreign’ lawyers can be perceived as being ‘part of the system’ that the clients are wary of. For example, those from Latin America may have an ingrained distrust of law enforcement because of decades of corruption in their own country, so they may feel less comfortable reporting crimes or being entirely forthright when speaking. Having the trust of an AQBL in these circumstances is essential.

Improved quality and efficiency of service

AQBLs bring access to a wider range of legal resources. Legal research requires a thorough understanding of the law, which often involves the use of legal resources in different languages. AQBLs can access these resources and utilise them to provide the best possible legal representation to their clients.

Moreover, AQBLs can lower costs for clients by improving efficiency. For example, in commercial litigation and dispute resolution, AQBLs can review documents in various languages without requiring translation or interpretation. This saves considerable time and costs for expensive translations (that require additional review and verification anyway).

Enhancing social justice

AQBLs can promote social justice, diversity and cohesion. Australia, often referred to as a ‘melting pot’ of cultures, benefits from AQBLs’ ability to serve a wider range of clients from various linguistic and cultural backgrounds, usually as a result of their own diverse heritage. Their presence in the legal field helps bridge the gap between communities and ensures individuals have equitable access to legal representation and resources, regardless of their language or cultural background. This not only leads to better outcomes for clients but also helps to build trust and confidence in the legal system, which accrues to the wider legal profession.

Australian Qualified Bilingual Lawyers can… assist with access to justice. They can dismantle the structural impediments that language minorities encounter in their interactions with courts, decision makers and the legal system.

Benefits to the legal profession

The legal profession has increasingly recognised the value of AQBLs and their unique contributions. The Law Society of NSW published in their Cultural Diversity Guidance that:

‘The Law Society of NSW recognises that creating an environment where every person, regardless of their background, has opportunities and support to reach their professional potential can result in better outcomes for the community at large, and better business outcomes for the profession.’

Additional benefits that AQBLs can bring to the legal profession include secondary materials, shared learning experiences and enhanced international collaboration.

Bilingual secondary materials

The availability of bilingual secondary materials, such as translations and interpretations of legal concepts and terminology, is crucial for a more inclusive and accessible legal system. These resources enable legal professionals and clients to gain a deeper understanding of complex legal issues in their native language, which can lead to more accurate and effective legal representation.

AQBLs play a critical role in creating and reviewing these secondary materials, ensuring that the translations are precise and capture the nuances of the original text. Their linguistic abilities and legal expertise make them uniquely suited for this task.

Fostering international relationships

These resources, previously developed by academics (or simply scarce) are now more readily available due to the efforts of AQBLs. In particular, their practical experience and understanding ensures materials are accurate, reliable and useful to lawyers, clients and academics alike.

AQBLs play a crucial role in promoting the Australian legal system to other parts of the world. They serve as ambassadors and bridges between different legal systems, not intending to impose the Australian legal system upon anyone, but to offer valuable insights and references for other countries to consider. For example, the first Asian-Australian barrister, William Ah Ket, spent time as a diplomat, serving as acting consul-general for China in 1913-1914 and in 1917. By sharing their expertise and knowledge, AQBLs facilitate cross-cultural understanding and create opportunities for collaboration and exchange between legal professionals from various jurisdictions.

In this capacity, AQBLs play a vital role in building trust and fostering positive relationships between different legal systems, which contributes to a more interconnected global legal landscape. This connection ultimately leads to improved legal outcomes and greater access to justice for individuals and businesses operating across international borders.

Opportunities and challenges

Active involvement in the legal industry

To maximise their impact, AQBLs should be actively involved in the legal industry. By participating in industry events, conferences, academic exchanges and seminars, they can share their unique insights and experiences with their peers, fostering a more inclusive and diverse legal community. Additionally, AQBLs can advocate for the development of policies and programs that support bilingual legal professionals and promote access to legal services.

Further, AQBLs can collaborate with law schools, professional associations, and other legal organisations to develop training programs and resources for aspiring AQBLs. These efforts will help ensure that the next generation of legal professionals is equipped with the necessary skills and knowledge to serve an increasingly diverse client base effectively.

In bilingual lawyering settings, where the client may be natively fluent in a language and the lawyer is only proficient—the lawyer will need to be aware of that gap and if necessary seek an external translator.

Practical and technical challenges

The practical challenges facing AQBLs have been addressed by others, however the pertinent point to remember is the importance of self-awareness. In bilingual lawyering settings, where the client may be natively fluent in a language and the lawyer is only proficient—the lawyer will need to be aware of that gap and if necessary seek an external translator. This is especially so for more complex translations of specific laws or statutes (e.g. ‘Metrology Law of the People’s Republic of China’).

Lawyers who are not natively fluent need to be aware of the risks of deferring to simplification. Linguist Ellen Bialystok describes three possible variations (i) approximation or using a similar word or construct e.g. ‘worm’ instead of ‘silkworm’; (ii) stringing other words together to coin phrases that convey the meaning; (iii) circumlocution or merely describing the characteristics or elements of an object or action. This may be of particular concern for dialects, jargon, accents, slang and speech speed. For example, distinguishing between Egyptian Arabic vs. Levantine Arabic; or the regional variations of Chinese Hokkien from Singaporean Hokkien vs Taiwanese Hokkien.

One strategy proposed in the literature to mitigate linguistic gremlins is the strategic use of paralinguistic and extralinguistic behaviour (speech patterns and body language). For example, where the lawyer is having trouble clarifying the precise nature of a ‘hit’ in a physical assault, they may be able to rely on paralinguistic hand gestures. Nonetheless, lawyers must still recognise the limitations of body language and when deferring to a formal translator is required.

Ethical duties and cultural challenges

The legal profession must uphold important duties to not just their clients, but also to the court and the administration of justice. However, clients from certain cultures may expect the lawyer to prioritise their needs and interests, while developing a close friendship and fostering a long-term relationship.

For example, in Chinese culture, building strong relationships (known as guānxì) is essential for conducting any business, including law. When a lawyer prepares an affidavit for instance, it is quite common to receive instructions from Chinese clients such as ‘I didn’t mean what I said as I was trying to be courteous’, or ‘I didn’t really check the contract as I thought he was my friend’, or ‘I agreed to the terms only because I didn’t want to disappoint them’. It is not suggested that understanding those cultural nuances would change those cases, or help a lawyer run a better argument for a case of unconscionability or non est factum; rather it helps with a lawyer’s empathy for the client and thus building a relationship of trust. Whether from expressly recognising their concerns, being more patient, or being more thorough when explaining associated legal concepts, clients can feel less uncertain, and more confident in their lawyer and the Australian legal system overall.

Conclusion

AQBLs bring significant benefits for improving client experiences and expanding knowledge within the legal profession. Outside of its purely functionalist potential, bilingualism can also strengthen and reshape relationships among actors, international associations and institutions. By actively engaging in the legal industry and advocating for policies and programs that support bilingual professionals, AQBLs can continue to make a significant impact on the legal profession and help shape a more inclusive and diverse legal landscape locally, and globally.