Communication is the main problem impacting on the ability of culturally, ethnically and linguistically diverse (CALD) parties receiving equal access to justice in New Zealand's courts, a major new report says.
The report, Culturally, Ethnically and Linquistically Diverse Parties in the Courts: A Chinese Case Study, has been prepared by the Superdiversity Institute for Law, Policy and Business. It is authored by Institute chair Mai Chen and supported by the Law Foundation.
The key issues and challenges faced by the justice system in ensuring equal access to justice for CALD litigants in courts are documented, and the report makes 36 recommendations.
Perspectives from judges, lawyers and interpreters have been generated by interviews with senior court judges, practitioners and prosecutors with experience of CALD parties, and interpreters. A case review looks at over 100 cases involving parties of Asian ethnicity since 2000.
The report says it is a case study of Chinese parties as research shows that Chinese are one of the groups facing the greatest barriers when they appear before the New Zealand courts.
"The main problem identified by judges as impacting on the ability of CALD parties to receive equal access to justice relates to communication," it says. "It is the lawyer’s role to communicate their client’s case to the judge or jury, and the aim of our research and this Report is to ensure that this communication is effective, efficient and does not break down. Lawyers need to be doing more and better for their CALD clients."
"Chinese litigants and defendants are more likely to struggle with the English language, and are reliant on interpreters that can be of variable quality. This, alongside the use of translated contemporaneous documentary evidence, exacerbates communication problems between the parties and the judge/jury."
The report says a key finding from interviews with judges was the real need for an enhanced pre-trial process. It says the introduction of this administrative change would ameliorate many of the issues and challenges identified by judges, although greater proactivity by lawyers of CALD parties is also needed to ensure effective communication with judges/juries.
A key finding is that the issues and challenges faced when representing Asian clients is more acute when acting for clients from People's Republic of China (PRC), because English is not commonly spoken (unlike countries such as Singapore and India), and because they do not come from a Commonwealth country.
"Even when advising Chinese clients from PRC in Mandarin or Cantonese, lawyers still struggle to explain key concepts to their clients, such as the independence of the New Zealand judiciary and the Torrens system of land transfer. In particular, unspoken norms and assumptions in how the courts operate may be hard for an immigrant to understand if they are not born in New Zealand, and particularly if they come from a country with a very different rule of law culture."
Another key finding was that both Chinese and New Zealand European lawyers need upskilling to be able to better understand the motivations of their Chinese clients, and to be able to fairly represent their client in civil disputes (in particular, understanding that Chinese clients may be more resistant to mediation as a form of dispute resolution compared to other clients).
New Zealand European lawyers need more “China capability”, it says, and some Chinese lawyers not born in New Zealand need a greater understanding of how the New Zealand rule of law differs from that in their country of birth.
The report also identifies some 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 in the law.
"This is partly driven by not being able to secure employment at law firms, and firms not being comfortable for Chinese lawyers to provide 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."
The report notes that Ministry of Justice data shows a growing need for interpreters in New Zealand tribunals and courts. In 2015, 4,123 cases required an interpreter, and by 2018 that figure had grown to 9,826 (of which 2,806 required a Chinese interpreter).
The research revealed that there is no uniform system for accreditation or certification of interpreters in New Zealand. Many interpreters commented that the changing demographics of New Zealand and the growing demand for interpreters meant that government investment in the interpreting occupation is necessary to inject quality and increase the numbers of people qualifying and working as interpreters.
"Interviews with judges, lawyers and interpreters demonstrated the importance of properly matching interpreters with witnesses. For example, while an interpreter from Singapore will speak Mandarin, they are unlikely to be able to pick up on the nuances and accent of a witness from rural PRC, and this will affect the quality of the interpretation. There is a need to implement a system to properly match interpreters in both the civil and criminal jurisdictions with witnesses to ensure quality interpretation to the standard required by the court," the report says.
Interviews with interpreters found a lack of definition in the role and status of a court interpreter, a lack of recognition or adequate remuneration, a lack of adequate time to prepare for court interpreting, and a court environment not conduicive to quality interpreting.
"The interviews with interpreters (and the Case Review) found that Mandarin and Cantonese interpreters were often the subject of complaints made against them by unsuccessful litigants."
The research also showed that there are a number of unique challenges faced by Chinese interpreters in achieving accurate interpretation of Chinese parties due to cultural factors.
"These include 'saving face' behaviours by witnesses, indirectness, politeness and the use of 'high context' by Chinese parties when explaining matters (meaning they provide additional background information that Westerners would not necessarily include).
The report says the relevant cases reveal patterns indicating that Chinese litigants do experience unique issues arising from their ethnicity, culture, or language which can make it more challenging for the court system to ensure they get equal access to justice when compared to New Zealand Europeans. These include Chinese cultural values that are potentially incompatible with common law adversarial court systems, due to the cultural perspectives about how one conducts oneself in disputes with others, for example, and the expectations shaped by the inquisitorial court system that operates in PRC where the judge is an investigator gathering evidence and not an adjudicator making a determination on the evidence presented, as in the New Zealand Court system.