Accommodating Superdiversity in our Legal System
On 18 November 2019, what has been described as a “ground-breaking” report was released by the Superdiversity Institute for Law, Policy and Business. The report, “Culturally, Ethnically and Linguistically Diverse Parties in the Courts: A Chinese Case Study”, applies a “superdiversity framework” to determine the issues and challenges faced by courts, judges, lawyers and prosecutors in ensuring equal access to justice for culturally, ethnically and linguistically diverse (CALD) parties.
According to census and migration statistics, New Zealand is becoming “superdiverse” (Superdiversity Institute for Law, Policy and Business Culturally, Ethnically and Linguistically Diverse Parties in the Courts: A Chinese Case Study, November 2019, p 12). There has been a substantial increase in the diversity of ethnic, minority and immigrants in the country. According to a definition provided by the Superdiversity Institute, a super diverse city is one where the migrant population exceeds 25% of the resident population or where more than 100 nationalities are represented (This definition can be found in Mai Chen Superdiversity Stocktake (Superdiversity Centre, Auckland, 2015) at p 52). Auckland is such a city. The report concludes that New Zealand’s rapid transition to a “multi-culture” society is causing problems for the law.
Mai Chen, Chair of the Institute, said in an interview with Radio New Zealand that if we are to hold onto the things we value such as equal access to justice and the preservation rule of law, it is incredibly important that we adapt and evolve our system. The third most common place where people in New Zealand are born is the People’s Republic of China.
The report quotes Associate Professor Andrew Godwin, Associate Director of the Asian Law Centre at Melbourne University School of Law, who explains that an awareness of the legal and cultural background of Chinese litigants helps to understand how this impacts on their perspectives and perceptions concerning our legal system:
“…culture is relevant in the courtroom in assessing evidence and the credibility of witnesses, in determining legal relations and intention and substantive elements, and also to procedure/decision – where a court decides on points of procedure and the form an order will take.”
Mai Chen says that in Auckland in particular, when you look at a call over list, half the people on that list have “Asian sounding names” (to use an infamous phrase, as she acknowledges). There are challenges for lawyers, judges, court staff and interpreters in managing this reality. Relatively few New Zealand lawyers speak Mandarin.
The report writers reviewed over 2000 cases and conducted interviews with lawyers, judges, translators, academics and police. It finds that Chinese are one of the groups facing the greatest barriers when they appear before the New Zealand courts. It makes 36 recommendations for justice sector stakeholders, from dealing with evidence and sentencing considerations through to NZLS running Continuing Professional Development (CPD) Seminars on cross-cultural communication for lawyers. The report importantly recognises there is a significant amount of work needing to be done to ensure New Zealand’s superdiversity does not undermine the ability of our court system to ensure equal access to justice for all.