New Zealand Law Society - Lawyers need to do more to ensure CALD clients get equal access to justice in courts

Lawyers need to do more to ensure CALD clients get equal access to justice in courts

By Mai Chen

The Superdiversity Institute for Law, Policy and Business launched its latest report, Culturally, Ethnically and Linguistically Diverse Parties in the Courts: A Chinese Case Study, on 18 and 20 November 2019, at CPD sessions in Auckland, Wellington and Christchurch. The ultimate goal of the research was to identify any issues and challenges faced by the courts in New Zealand in ensuring equal access to justice for culturally, ethnically and linguistically diverse (CALD), particularly Chinese parties in the courts in New Zealand, and to determine whether any changes are needed to ensure courts are better equipped to administer justice.

Census and migration statistics show that New Zealand is becoming increasingly diverse. The Superdiversity Stocktake defines superdiversity as being “the substantial increase in the diversity of ethnic, minority and immigrant groups in a city or country, ‘especially arising from shifts in global mobility’.” Superdiverse cities have been defined as those where migrants comprise more than 25% of the resident population, or where more than 100 nationalities are represented (Mai Chen Superdiversity Stocktake, Superdiversity Centre, Auckland, 2015, at 52).

The 2018 Census shows that 27.4% of people were not born in New Zealand (up from 25.2% in the 2013 Census); 15.1% of New Zealand’s population identified as Asian (up from 11.8% in the 2013 Census), and 70.2% identified as New Zealand European (a decrease from 74% in the 2013 Census) (“New Zealand’s population reflects growing diversity”, 23 September 2019, Statistics New Zealand).

A case study of Chinese parties

However, the report is a case study of Chinese parties as research shows that Chinese are one of the CALD groups facing the greatest barriers when they appear before the New Zealand courts. Recent net migration statistics also show that Chinese are the biggest migrant group arriving into New Zealand, after returning New Zealand citizens. For instance, in the year ended January 2019, 14,700 migrants arrived from China, with the next biggest group being India, with 12,600 migrants (“Net migration remains around 50,000” 9 August 2019, Statistics New Zealand). In the 2018 Census, China was the third most common birthplace for those usually resident in New Zealand, after New Zealand and England – 2.9% of the usually resident population were born in China, an increase of 0.7% from the 2013 Census (“2018 Census totals by topic – national highlights”, 23 September 2019, Statistics New Zealand).

Many of the findings and recommendations will be equally applicable to all CALD parties in New Zealand and will help better equip our courts to provide equal access to justice for everyone.

As a former Attorney-General of New Zealand, Chris Finlayson QC, writes in the foreword to the report: “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 adapt to the new world. Not some time in the future but now.”

Melbourne Law School Associate Professor Andrew Godwin has said that 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 (“Chinese Perspectives on the Law”, presentation at Judges’ Meeting, Federal Court of Australia, 25 August 2017).

Scope of the research

The research included interviews (conducted on an anonymous basis) with senior court judges, as well as with two retired District and Family Court judges of Chinese ethnicity. About 20 practitioners were interviewed, including Queen’s Counsel and senior prosecutors. The research also benefits from the research and insights of prominent academics and experts in the Chinese rule of law. Importantly, a number of experienced interpreters were also interviewed.

Another critical aspect of the research was a comprehensive review of over 100 cases featuring parties of Chinese or Asian ethnicities in the senior courts since the year 2000. Over 1,000 cases were reviewed to identify key cases of relevance. The key issues and challenges that arose from the interviews with judges, practitioners and interpreters were reflected in the key issues that came out in the case review. The research included a review of relevant data as well as literature and research from New Zealand and international studies. We identified ten times as many cases of relevance in the High Court in Auckland than in all the other High Court registries combined.

The report has implications for a large number of organisations/individuals including the Ministry of Justice, the New Zealand Law Society, mediators, law schools, continuing legal education, law firms and other agencies (read the report for a full list of recommendations), but I focus below on the key findings and recommendations concerning lawyers, judges and interpreters.

Judges’ perspectives

The main problem impacting on the ability of CALD parties to receive equal access to justice identified by the research and interviews concerns communication, which after all is the essence of the court process. It is the lawyer’s role to advocate their client’s case to the judge or jury, as well as communicate effectively the need for an interpreter. The report finds this communication has not been as effective and efficient as it could or should be. Lawyers need to be doing more and better for their CALD clients.

Interviews with judges and lawyers revealed that Chinese litigants and defendants are more likely to struggle with the English language, and are reliant on interpreters that may be of variable quality. The interviews and case review also showed that Chinese parties often deal with each other on the basis of trusting relationships, rather than through written agreements, which means that there is no or inadequate contemporaneous documentary evidence to assist the court in civil disputes. In turn, this increases the importance of the court’s reliance on viva voce (oral) evidence, the meaning of which can be distorted through the use of interpreters. Where there is contemporaneous documentary evidence, it is often drafted without legal input and will require translation from Chinese into English, which can distort the meaning and clarity of the documents. The result is that lawyers in particular, but also judges, need to work harder to ensure equal access to justice for CALD clients and parties.

Other key findings identified from the interviews with judges included:

  • Particularly in Auckland, the growing Chinese population in New Zealand means judges are dealing with greater numbers of Chinese in the court system;
  • Some judges have observed challenges arising from self-representation by Chinese litigants. The challenges faced by Chinese litigants-in-person appear to be more acute than for New Zealand European litigants-in-person, due to the different rule of law culture they come from or their inability to speak English proficiently;
  • Judges and lawyers raised concerns about the variable quality of interpretation provided by interpreters in New Zealand courtrooms. Judges interviewed observed that use of interpreters at a trial can take twice as long, and that this was not being adequately taken into account when trials are scheduled on the basis of counsels’ estimates of the hearing time required;
  • The adversarial system in New Zealand courts may exacerbate the challenges in ensuring equal access to justice for Chinese parties. Courts in China adopt an inquisitorial approach, and thus Chinese parties may expect the New Zealand court to function in a similar way;
  • Challenges with Chinese witnesses who travel to New Zealand from China for the purpose of giving evidence, due to a lack of understanding by the witnesses as to the role and function of a witness in New Zealand.
  • Information about a Chinese litigant or witness’ background; for example, which country they were born in, and how long they have been in New Zealand (or other English speaking common law countries), may be very relevant to the matter the judge is presiding over, including to determine the English language capability of the parties; and
  • Concerns that Chinese jurors are more likely to request to be excused from serving due to their English language capability or because they do not sufficiently understand the process and their role (although judges noted that Chinese jurors generally respond dutifully to their summons and show up to court).

Recommendations for enhanced pre-trial process

The report recommends the implementation of an enhanced pre-trial process, and the use of the same judge, registrar and interpreter throughout the whole trial process where possible. This will allow early identification of the need for an interpreter, to ensure adequate time is scheduled for the trial and to enable the judge to be made aware by counsel of any issues and challenges that may arise due to cultural factors during the trial.

The report also recommends that the Ministry of Justice fund cultural reports requested under section 27 of the Sentencing Act 2002, to enable the judge to order these reports to assist in sentencing decisions, and that a mechanism should be introduced to enable judges to access cultural guidance in civil disputes. This guidance can help explain why Chinese parties have acted the way they have, for example, in lending a large amount of money to a friend or relative with no documentary evidence establishing the purpose or term of the loan, in refusing to settle even though the amount at stake is far less than the legal fees that would be incurred in continuing the legal action and in getting their spouse to pass on their remorse for a crime to the judge.

The lack of contemporaneous documentary evidence, coupled with reliance on viva voce evidence through an interpreter, means that judges may need to be more willing to admit relevant evidence when it is presented in less traditional formats.

The report recommends directions to juries on unconscious or conscious bias, particularly in criminal law cases such biases, based on cultural norms and held by jurors, might inappropriately affect a juror’s impartial assessment of the facts and evidence before them in drug and fraud cases, for example.

The report also recommends ongoing cultural training for the judiciary to develop what Australian Justice Emilios Kyrou calls a “mental red-flag cultural alert system to give them a sense of when a cultural dimension may be present so that they may consider what, if anything, is to be done about it.” Early completion of an Equal Treatment Bench Book for New Zealand by the Institute of Judicial Studies is also recommended.

Interpreters

There is no mandatory formal qualification required to practise as an interpreter in New Zealand. Thus, the report recommends most urgently the need for a uniform system of certification or accreditation for interpreters, and the use of qualified interpreters in courts wherever possible. Other key findings from interviews and research on interpreters include:

  • It is important to properly match interpreters with witnesses; for example, the Mandarin spoken in Singapore will be very different to that spoken in rural China;
  • Appointment of interpreters in the criminal jurisdiction is generally done by the Central Processing Unit at the Ministry of Justice, and in most cases, the court simply adopts the decision of the unit, with the costs borne by the state;
  • In civil proceedings, the appointment of interpreters is left to the parties. The party calling a witness will generally be responsible for paying the interpreter, and this may impact on the neutrality of the interpreter, and also the quality, as the party may simply choose the cheapest interpreter available;
  • Interpreters are not given adequate time to prepare for a trial, are often not able to receive court documents to assist them in preparation for a trial and do not have a dedicated place to sit in court; and
  • Pay rates for interpreters are low, and interpreters feel the profession is not well-defined and of a low status. Anecdotal evidence suggests this has resulted in interpreters moving overseas.

The report recommends shifting responsibility for the booking and arrangement of interpreters from a unit within the ministry to the Court registry, to allow judges to approve interpreters in every case. The report also recommends that the Ministry of Justice consider public funding of interpreters in civil cases as well as criminal, so as not to erect an unfair barrier to accessing justice for CALD parties and the introduction of a system of qualified and experienced “duty interpreters” employed by the court and able to provide quality interpretation services in trials.

Other recommendations made relating to interpreters include:

  • The need for court interpreting to be recognised as a profession, and for court interpreters to be appointed as officers of the court;
  • That the pay rates for interpreters be increased, in particular by reviewing the rates set in the Witness and Interpreters Fees Regulations 1974, which have not been updated since 1996;
  • That court interpreters receive induction and training in the courtroom process; and receive training on cultural nuances;
  • That a formal interpreting protocol and complaint mechanism be established through the accreditation system introduced; and
  • That a decision be made as to where interpreters should sit and stand in court, and that interpreters and judges are informed as to this place. In the long term, when future courtrooms are developed we recommend that a designed place for the interpreter to sit, ideally a desk, be built in to the courtroom design.

Lawyers’ perspectives

Most importantly, the report finds that lawyers need to be doing a lot more to ensure that their CALD clients are getting equal access to justice. The research shows that issues and challenges faced by Chinese from China are more acute than for CALD litigants of other ethnicities, as they do not come from a country where English is widely spoken (such as India or Singapore), and also due to the different rule of law culture in their country of birth, as they do not come from a country with a Commonwealth background, such as Hong Kong. The Chinese cultural concept of “face” or mianzi was also identified as an impediment toward Chinese parties reaching a settlement in civil disputes, and that in the criminal context, it may mean that a person of Chinese ethnicity is less likely to plead guilty or show remorse for their offending.

Some Chinese lawyers alleged discrimination, for example, unfair criticism, patronising behaviour, derogatory remarks about themselves and their clients, and stereotyping, from New Zealand European practitioners and from judges, due to their ethnicity. Some Chinese lawyers said that Chinese clients sometimes preferred a New Zealand European lawyer to avoid any prejudice from the judge or jury – on the reasoning that European judges and jury members would not discriminate against their own.

The research identified emerging issues related to the growing number of small boutique Chinese law firms that are only servicing Chinese clients, and also the growing number of Chinese lawyers going into sole practice with limited experience. This is partly driven by not being able to secure employment at law firms, and firms not being comfortable with Chinese lawyers providing legal advice in Mandarin – which New Zealand European lawyers cannot supervise. There is a sense that young Chinese lawyers are being isolated by working in Chinese law practices with only Chinese clients and other Chinese lawyers.

Some of the other key findings identified from interviews with lawyers include:

  • Lawyers representing Chinese clients face a difficulty in understanding and then explaining in court why their Chinese client has acted in a way that may feel foreign to a New Zealand European judge or lawyer, but not to a person of Chinese ethnicity. For example, it is not unusual for Chinese to complete a major business transaction without a legally drafted contract, or without a contract at all, and without legal advice;
  • Chinese lawyers appear less likely to work in criminal law as they, or their families' prefer they work in commercial law, which is perceived to be more lucrative and of higher status. Alternatively, they prefer to work in areas that do not require court advocacy, due to their lower English language competency;
  • Chinese accused of criminal offences may seek representation from their family lawyer who speaks Mandarin (but generally only advises on transactional matters), or, a New Zealand European lawyer (as they think they will face less discrimination from the judge if they do) who might lack an understanding as to their culture and will also be unable to communicate with them in their language;
  • Regulatory agencies and Police are struggling to deal with the evidence of Chinese parties in criminal proceedings, as it will often be contained in large volumes of “chat” messages (in particular, WeChat - the message app of choice for many Chinese - , WhatsApp or similar services) that require translating - although evidence in text or other message form is increasingly common in prosecutions of persons of all ethnicities; and
  • There can be misunderstandings with Chinese clients about legal fees, due to the different way legal fees are charged in China (usually a success fee).

Use of mentoring programme recommended

The report recommends that the New Zealand Law Society consider how to use the mentoring programme that is currently being piloted in Auckland and Canterbury Westland to enable mentoring for young Chinese lawyers on avoiding discrimination and stereotyping, to encourage Chinese lawyers to work or stay working in litigation and in the criminal law field, and to assist New Zealand European lawyers working with Chinese criminal accused to properly understand their clients’ instructions. It also recommends that all bodies that currently accredit mediators develop training and guidance for lawyers working with Chinese clients to enable lawyers to properly advise their client on mediation, how it works in New Zealand and the advantages of mediating a case rather than pursuing it through court.

Mai Chen mai.chen@chenpalmer.com is Chair of New Zealand Asian Leaders and the Superdiversity Centre of Law, Policy and Business. She is managing partner at Chen Palmer and an Adjunct Professor at the University of Auckland Law School.

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