*Warning: this article contains themes of violence and sexual abuse*
The Government moves on a just-released Royal Commission report into abuse in care. David Williams reports.
Forty-eight million dollars.
In the scheme of things it’s a trifling amount for a government. It’s less than the $61 million spent on a pavilion at Expo 2020 Dubai, and the $77 million cost to the country for hosting Apec meetings. It’s less than half of the Government’s $114 million commitment, made pre-pandemic in 2018, to secure the America’s Cup yacht race in Auckland.
That magic $48 million figure is what four government agencies – Ministry of Social Development, the Education and Health Ministries, and Oranga Tamariki – paid in out-of-court settlements as of November last year to 2300 survivors of abuse; abuse under the care of those agencies over decades. (That doesn’t account for payments from faith-based institutions, and legal costs are extra.)
The sum is contained in the just-released Abuse in Care Royal Commission’s two-volume interim report, He Purapura Ora, he Māra Tipu – From Redress to Puretumu Torowhānui. Much of the first volume’s 424 pages are dedicated to more important details, which can’t be counted in dollars.
The report’s inescapable conclusion is New Zealand is a place of abuse and torture, where vulnerable and marginalised people have been wrenched from families, cleaving cultural connections, based on a system of racism and discrimination. Many children and vulnerable adults taken into care were – and still are – Māori, who are over-represented.
People were cut off from their culture, language and identity, and moved to places that made things worse – children’s homes, youth justice facilities, psychiatric hospitals, faith-based institutions. Pākehā places, but also places of serious abuse and neglect.
In once-trusted institutions, either state or faith-based, hundreds of thousands of people were abused, ruining lives and robbing them of their futures. The harm hasn’t just affected individuals, but whānau, communities of Māori and Pacific peoples, the deaf and disabled communities, and the whole of Aotearoa.
Governments pressured the parents of disabled children to place them in state care from the age of five. It was better, they were told. But that was an ableist assumption, based on the assumption being disabled is a misfortune, a life of suffering and disadvantage.
The abuse was horrific.
Physical violence, rape, sexual violation. Abuse that was psychological and emotional in nature, sometimes because of one’s race or religion. Long periods of isolation. Punishment meted out included electric shocks and painful injections of sedatives.
When survivors – who were damaged physically, emotionally and psychologically – asked for help, and to be compensated for what happened to them, they were disrespected. Claims sat in in-trays for months or even years. When they were picked up, intimate stories about their worst moments were often disbelieved or dismissed.
Records crucial to their cases were held by the very institutions considering the claims. It was a struggle to get copies. Once released, swathes of redactions rendered them barely useable.
There was no independent oversight of claims, or the right to appeal to an independent adjudicator. It was an affront to Māori that processes were run by the coloniser – the Crown – rather than at arm’s length, in a process designed with Māori.
The persistent few who pursued claims in the courts, like Leoni McInroe, a survivor of Lake Alice, a government-run psychiatric hospital near Whanganui, were met with the full force of an uncaring and unthinking state. It was hell-bent on winning cases and avoiding liability by relying on technical defences and aggressive tactics.
Claimants were left, most often, with a take-it-or-leave-it settlement, and lukewarm apologies.
Faith-based institutions were no better, with survivors going through intimidating processes behind closed doors. Settled claims, through modest payments and a qualified ‘sorry’, rarely leading to justice. Perpetrators were moved on, quietly, to places where their abuse continued.
It suited these agencies and organisations to divide and conquer – to separate complaints and squeeze claimants one-by-one. When viewed as individuals they weren’t part of a widespread problem.
“The scale of abuse was simply too horrific to acknowledge, the financial ramifications too huge to contemplate,” the Royal Commission report says. “So they told themselves these cases were not symptomatic of any wider problem.”
Perhaps through society’s collective denial, thanks to the problems having been swept so successfully under the carpet, it was thought $48 million would deal with the problem.
With the release of He Purapura Ora, he Māra Tipu, there’s nowhere left to hide. That includes the Governor-General Dame Cindy Kiro, Prime Minister Jacinda Ardern, and religious leaders, who, the commission recommends, should apologise.
The next question is, what to do about it?
Righting the power imbalance
The Royal Commission, a recommendation-making body, says state and faith-based institutions have an obligation of puretumu torowhānui, or holistic redress, for tūkino – the abuse, harm and trauma suffered.
Its 95 recommendations set out a blueprint for establishing an independent Crown entity – not a departmental public body – to become the single scheme for redress. New legislation and regulations would be required.
It would be fully Crown-funded to avoid delays in payments, while reimbursements would be sought for payments awarded against organisations for abuse in its care.
In a statement, the Government says a new, independent system will be developed, in collaboration with Māori, who were over-represented in state and faith-based care, as well as survivors and key communities, like Pacific peoples and disabled people.
“The Royal Commission has flagged areas where urgent action is needed before a new system is in place, such as advance payments for older or terminally ill survivors. They will be prioritised,” Public Service Minister Chris Hipkins says in a statement.
Final Cabinet decisions are expected in mid-2023, which is about the same time the Royal Commission is due to deliver its final report.
The commission’s recommendations – arrived at by talking with survivors, experts, and those who run comparable schemes overseas – right the power imbalance that has always favoured institutions.
The starting point for claims should be “belief in the survivor”. Redress “must be tailored to the individual’s particular needs”, the commission report says, through “brief” or “standard” claims.
A new scheme won’t just focus on financial payments, but offer a range of measures designed to improve oranga, or wellbeing, and restore mana – which has many meanings, including power, presence, authority, prestige, reputation, influence and control.
The aim is utua kia ea – “a process to achieve a state of restoration and balance”.
Apologies must be tailored to individual needs – some will want them written, in person, or both. Some may request it comes from a senior-level representative, like a church bishop or a government agency chief executive. It might be delivered to the person, or entire whānau.
Support services, such as counselling, legal advice, help to get and understand official records, and help to make complaints, should be free. (A stocktake will be needed to ensure there are sufficient services available. Funding for extra services might come from a dedicated Crown fund.)
The commission says serious criminal offenders should not be excluded – an acknowledgement their mistreatment in care most likely contributed to their decision-making. And whānau of deceased survivors should be able to apply.
If faith-based institutions and indirect state care providers don’t join voluntarily, they should be given incentives or, as a last resort, be compelled, in the commission’s view. In successful claims, they should be required to pay or contribute to the schemes as well as giving “genuine and full apologies”.
Payments must be meaningful – a pointer to the fact existing payments have not been.
The latest tally of Ministry of Social Development claims is $30.2 million. While that may seem a large figure, the average is a modest $20,000, and the lowest was $1000. The average payout by the Ministry of Health is $6000; the Education Ministry $15,300.
“These figures are very low compared with payments by overseas schemes,” He Purapura Ora, he Māra Tipu says.
The average payment in the Australian National Redress Scheme is about $A80,000 ($NZ84,000). In the Canadian Independent Assessment Process for Indian Residential Schools the average was about $C91,000 ($104,000). In the Irish Residential Institutions redress scheme, the average was about €60,000 ($98,000), while in the upcoming Redress Scotland scheme, the average is predicted to be about £30,000 ($49,000).
The commission doesn’t want claimants to sign a waiver, which would bar those seeking a redress decision from taking court or civil action against institutions allegedly responsible for their abuse.
Part of that comes back to the genuine apologies. Might an institution prefer a redress decision to avoid accountability? Also, if credible allegations of torture are barred from being pursued in court, that might trample on a survivor’s human rights.
The scheme has a lower burden of proof than the courts, the commission says – which means decisions should not amount to a finding of civil or criminal liability against named institutions or individuals. Courts should take redress decisions into account to prevent double-dipping.
There must be review rights – for survivors and institutions – including the ability to seek judicial review. The scheme itself would be reviewed by an independent body after two years.
Overall, the commission says, the scheme must be the polar opposite of current schemes, which should be wound up. From the outset the new entity must be properly resourced, and have well-trained and motivated staff with the powers to do their job properly.
The scheme’s operation should promote confidence in its work and trust among survivors – “many of whom are deeply distrustful and suspicious of the state, institutions and authority generally”.
“We have already explained in detail the lack of transparency in current redress processes, the inconsistency in outcomes between and within the various redress processes, the lack of information about eligibility criteria, how decisions are made and entitlements, and also the delays and lack of updates.
“The scheme must show how things can be done differently, and in accordance with its core values.”
One thing’s for certain – it will cost more than $48 million.
The 15 weeks of Royal Commission hearings so far haven’t just given survivors a voice to tell their stories, they’ve reminded the public, and the institutions that abused them, that they have names and faces.
Their courage is acknowledged today by Internal Affairs Minister Jan Tinetti, who said in a statement: “This report tells us what happened, now comes the work of addressing many years of avoidable harm.”
Most prominent among abusive institutions was the child and adolescent unit at Lake Alice, which closed in 1978. But the horror didn’t stop there.
There were sustained beatings, and other shocking acts, at bootcamps like Moerangi Treks in Te Urewera, or the Whakapakari youth justice programme on Great Barrier Island. At Whakapakari there were repeated rapes, and children were forced to dig their own graves while shots were fired over their heads.
A young woman at a home run by the St Mary’s Homes Trust Board recalled being punched and slapped by the matron while in labour, then having her baby forcibly removed against her will immediately after birth. Thirty years later she found out a woman had paid the matron $200 “to buy my son to replace her baby that was stillborn”.
In 1977, a nine-year-old girl was abused at her family home, in Masterton, by a Marist brother, Michael Beaumont. While the family closed their eyes in prayer, Beaumont slid his hands down her pyjama pants and inserted his finger into her vagina.
Abuse in care is bad enough, but survivors were re-traumatised when they sought justice.
Let’s return to Leoni McInroe, who was abused by doctors and staff at Lake Alice.
The Royal Commission found multiple failings by Crown Law, including not assessing McInroe’s claim to conclude whether or not it was credible and corroborated – which it was – taking unacceptably long delays, failing to meet court-mandated deadlines, and focusing unduly on legal defences and minimising the Crown’s liability.
The health ministry, which was responsible for Lake Alice claims, didn’t act to avoid these failings.
More than six years after her claims were lodged, McInroe was obliged to undertake an examination in a forensic psychiatric hospital. She believed it was intentional punishment for challenging the Crown. Her personal diaries were kept for six years.
She also had to attend a secret mediation meeting which brought her face-to-face with her abuser, Dr Selwyn Leeks.
Before her claim reached court, the Crown settled a class action with a group of more than 80 Lake Alice claimants. McInroe believed that settlement was designed to lower the bar for future settlements, including hers.
The case was settled in July 2002, after nine years. An apology wasn’t forthcoming, so she asked Crown Law to provide one. The “expression of regret” was sent in March the following year. “The time taken for some steps was longer than might in other circumstances have been needed,” the note said. “This should not have occurred. Please accept our apologies. We take this opportunity to wish Ms McInroe well now, and for the future.”
Solicitor-General Una Jagose later described it as “woefully inadequate”.
The Royal Commission said the Crown had an obligation under international law to ensure a prompt, independent and impartial investigation of torture allegations.
Prompted by a claim by another Lake Alice survivor, Paul Zentveld, the United Nations Committee Against Torture found state authorities hadn’t made consistent efforts to verify claims of torture at Lake Alice. That breach of the Torture Convention sparked a renewed police investigation, which led to an 89-year-old appearing in court on charges this week. But not Leeks, who has been warned of “adverse findings” against him by the commission.
Expect to learn more when it publishes its Lake Alice-specific report next year.
Where to get help:
1737, Need to talk? Free call or text 1737 any time for support from a trained counsellor
Lifeline – 0800 543 354 or (09) 5222 999 within Auckland
Samaritans – 0800 726 666
Suicide Crisis Helpline – 0508 828 865 (0508 TAUTOKO)
thelowdown.co.nz – or email team@thelowdown.co.nz or free text 5626
Anxiety New Zealand - 0800 ANXIETY (0800 269 4389)
Supporting Families in Mental Illness - 0800 732 825
