The Asian Australian Lawyers Association has made a number of recommendations to improve procedural fairness for parties from culturally and linguistically diverse communities.
In its Subdiversity Action Plan 2025, published by the Federal Court on Wednesday (21 January), the Asian Australian Lawyers Association (AALA) has mapped out a way for the judiciary, tribunals, and decision-makers to improve the way culturally and linguistically diverse (CALD) people interact with the justice system.
Although Australia’s migration patterns have evolved, and the landscape in which CALD parties come before courts has changed, AALA said one thing has remained the same: “The Australian judicial system is still particularly difficult for many to navigate.”
“The Superdiversity Action Plan sets out practical, forward-looking initiatives through research, judicial training, interpreter standards, professional development, and legal education,” AALA national president Matt Floro said in the foreword.
“It aims to ensure that our courts, institutions and legal profession truly reflect the rich diversity of modern Australia.”
Translation and language improvements
AALA first suggested that materials such as self-represented litigant guidelines, legal aid documents, and court directories should be updated to include languages other than English.
The costs of interpreters “disproportionately affect CALD parties”, and AALA recommends that superior courts take on the costs in appropriate cases, such as is already happening in lower courts.
Courts should also consider managing translating and interpreting issues in the ordinary course of case management and have this process included in a practice note for a uniform approach.
By planning early, courts can avoid the delays associated with witness evidence via interpreters, interpreting parties during trials, and the translation of documentary evidence.
The language used in courts should also be simplified or made easier to understand for translators to avoid common errors.
Courts should endeavour to ensure witnesses understand that context can easily be lost in the translation process, including when evidence carries implicit cultural assumptions.
For example, in Korean culture, a person’s age may influence their position in the social hierarchy within interpersonal relationships, but this may be lost unless the court is sensitive to that context.
AALA also recommended that courts be cautious about requiring a witness who appears to be a second-language English speaker to give their evidence in English, even if it appears adequate.
Cultural context v cultural bias
AALA said caution must be given when distinguishing between cultural evidence and cultural bias, the latter of which refers to the making of an adverse credit finding against a witness based on the way they speak or act without having regard to their culture.
When it comes to making a finding about culture, the association said it is “extremely difficult” to define a class of people to whom a particular culture is said to apply, and “overly broad findings risk stereotyping, which is itself a form of cultural bias”.
AALA said it is also impossible for judicial officers to be trained in the nuances of every culture, but recommends that they receive training about the effects of cultural assumptions more generally.
Judicial officers could also be more proactive in seeking clarification where it is unclear whether a witness’s response has been influenced by a cultural factor or by a translation issue prior to credit findings.
Further, these officers should be encouraged to participate in international programs and collaborate with overseas counterparts.
“Such engagement provides valuable opportunities to learn about different cultural contexts and legal systems from a judicial perspective,” AALA’s action plan set out.
Avoiding the ‘echo chamber’
Lawyers can often find themselves the “primary or only source of information” for non-English speaking CALD litigants.
AALA said this can create difficulties where the lawyer has effectively become the “filter” through which information flows.
The issue is exacerbated where there is a lack of accessible external resources in the litigant’s first language, and this may result in an echo chamber where they hear only what their lawyer chooses to share.
AALA recommends the court give consideration to early and proactive case management to address these issues, including by requiring parties and their interpreters to attend initial directions hearings so the court can explain directly what it expects.
