Workshop aims to bring Asian cultural awareness into the courtroom

Increasing cultural awareness in the courtroom was the key focus of a recent workshop delivered to current sitting judges of the Commercial Court of the Supreme Court of Victoria.

Japanese Koi Fish

The inaugural workshop aimed to increase judicial officers’ understanding of how culture may affect a litigant’s behavior in the courtroom.

It also demonstrated the importance of change within the judiciary in commercial litigation involving Asian parties – a rapidly developing area of practice.

The event was chaired by Justice Kim Hargrave and Justice James Judd of the Supreme Court of Victoria, with a welcome from Chief Justice Marilyn Warren AC.

Associate Director of the Asian Law Centre Andrew Godwin facilitated the one-day workshop and says it was part of a wider push to increase Asian cultural awareness in Victorian courts.

“Commercial litigation involving Asian parties is currently on the rise in Victoria, and in Australia generally, whether it be in the context of property, business or shareholder disputes.”

Mr Godwin also says culture can manifest in a courtroom setting in varied ways.

"Witnesses might or might not be comfortable with making an oath in the traditional way. Or they may give different answers to a judge depending on their deference to authority,” he says.

In fact, even beyond the behaviour of parties, culture is inherent in the very fabric of law.

“Judges consider culture, consciously or unconsciously, when they decide what the reasonable person would have done in the circumstances, or when they decide whether to accept evidence that someone acted in a certain way on account of their culture.”

The judges who took part in the workshop listened to legal perspectives from three jurisdictions: China, Vietnam and Indonesia. A key theme was how there may be different sub-cultures within the one dominant culture.

“We know there is no such thing as a typical Asian litigant. Throughout the workshop, it became apparent that nor was there such thing as a typical Indonesian litigant, for example”.

The workshop also explored broader concepts regarding the administration of justice, such as equality before the law.

“Of course we cannot compromise our system of equality before the law. However, we need to ensure that a lack of cultural awareness on the part of our judiciary does not compromise equality for those litigants who are not part of the dominant culture, as otherwise they may be at a disadvantage in the courtroom,” Mr Godwin says.

A focus for the day was also developing practical tools for judges and litigants, with new ways of providing information on Victorian court processes to foreign litigants being investigated.

Given the success of the workshop, the Judicial College of Victoria is now looking to hold follow-up sessions and also to contribute further to the conversation in other courts and jurisdictions around Australia.

By Blake Connell