A recent series of racist attacks on election campaign billboards of Asian candidates in Auckland show that race still remains an issue for a very small minority of our society. Those faceless, cowardly vandals have reportedly left some in the community disturbed and hurt.
New Zealand is a more diverse society than we have ever been. We are more aware than we have ever been about bias and unconscious bias.
The composition of our courts today is far removed from the pale, stale males that generally stacked the benches of justice some years ago now.
There has been judicial recognition within recent judgments that cultural differences may need to be considered by our judges in what remains largely an anglo-centric legal system.
The recent decision of New Zealand’s highest court, the Supreme Court, in Deng v Zeng noted that it might be necessary to consider issues about ‘the cultural setting in an arrangement between two Chinese parties”. The New Zealand Law Society | Te Kāhui Ture o Aotearoa was invited to intervene in the appeal in consultation with NZ Asian Lawyers.
The Supreme Court made some general observations about cases in which one or more of the parties may have a cultural background which differs from that of the judge and the judgment provides guidelines for cases where it is appropriate for a judge to receive evidence bearing on the social and cultural framework within which the parties in a case may have been operating.
The court said a key to dealing with such cases successfully is for the judge to recognise that some of the usual rules of thumb they use for assessing credibility may have limited utility. For instance, assessing credibility and plausibility on the basis of judicial assumptions as to normal practice will be unsafe, if that practice is specific to a culture that is not shared by the parties.
Having said that, the Court reiterated that most of the usual ways that judges assess credibility while managing a cultural dimension may require no more than the most basic of all tools in a judge’s toolkit, namely context and common sense. Read more