November 18, 2019

Ground breaking report into Superdiverse parties in Courts

The Superdiversity Institute for Law, Policy and Business is releasing its latest report today on Culturally, ethnically and linguistically diverse parties in the Courts: A Chinese case study.

The Report’s author, Mai Chen, Chair of the Superdiversity Institute said “Superdiversity is deepening in New Zealand. Census 2018 showed that the percentage of people not born in New Zealand was 27.4%, an increase from 25.2% in Census 2013. Census 2018 data also shows the biggest increase in ethnic group is the Asian population. The percentage of New Zealanders who identified with at least one Asian ethnicity grew from 11.8% in 2013 to 15.1% in 2018. The People’s Republic of China was the third most common place of birth after New Zealand and England. By 2038, Statistics New Zealand has projected that Asian peoples will comprise 35 per cent of Auckland’s population.”

The Report is a global first in applying a Superdiversity Framework to determining the issues and challenges to culturally, ethnically and linguistically diverse (CALD) parties in getting equal access to justice in courts.

Former Attorney-General, the Hon Chris Finlayson QC writes of the Report in his foreword “this is not a work to be read and shelved but read and implemented throughout the justice system. There is no going back. Major demographic change will not be reversed so we must all adapt to the new world. Not some time in the future but now.”

The Report examines the key issues and challenges faced by the justice system in ensuring equal access to justice for CALD litigants in New Zealand courts and makes 36 recommendations. It includes perspectives from judges, lawyers and interpreters, drawn from interviews with senior court judges, practitioners and prosecutors with experience of CALD parties and interpreters. It also includes a review of relevant data and literature and a substantial case review with analysis of over 100 cases involving parties of Asian ethnicity since the year 2000.

The research in the Report indicates that the cultural background and language limitations of many Asian and Chinese parties who come before the New Zealand senior courts affects:
• The way they present evidence;
• The way they respond to questioning of their actions and motivations;
• The way they verbally or physically express themselves or visibly show (or fail to show) emotions such as remorse, empathy or contrition;
• Their sense of what is the right thing to do when they perceive that a particular outcome could reflect adversely on their personal honour or that of their family (“mianzi”);
• Their confidence in representing themselves without the assistance of legal counsel and their sense that this is not a disadvantage;
• Their expectation of how judges will determine the “truth” – an inquisitorial process where the truth is distilled from an active judge-led examination and evaluation of competing perspectives of what happened and why, or an adversarial process where the judge determines which of two competing versions of the truth he or she finds more credible;
• Their expectation that judges will take account of who they are, and their status and wealth, in determining credibility and the “truth”. To that extent, they assume that judges are not truly independent;
• Their willingness to accept that they have been treated fairly and that the court did give them a fair opportunity to be heard; and
• The ability of New Zealand European lawyers to understand their clients’ instructions and motivations for their actions.
Ms Chen said “With the increasing number of New Zealanders not born here and coming from very different rule of law cultures, there is a burning platform to adapt New Zealand’s legal system to ensure those people can get equal access to justice. The Report is therefore relevant to all New Zealanders of a different culture, ethnicity, religion and language background, to those who advise them, or who work in the Courts, or train or regulate lawyers, to law firms and to mediators of legal disputes.

The former Attorney General Hon Professor Margaret Wilson in her foreword stressed the importance of increased resourcing relating to interpreters and cultural aware training of all members of the legal community, including judges, lawyers and court officials.

The Report will be launched in Auckland today (and livestreamed to Christchurch) and launched in Wellington on Wednesday, followed by CPD events to better train lawyers to ensure equal access to justice in courts for their culturally and linguistically diverse clients.

The Superdiversity Institute thanks the Ministry of Justice, the New Zealand Law Foundation and the Borrin Foundation for their support of this important report.

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