Despite the many, many recommendations in today’s final inquiry report, there are still some glaring omissions, writes Steve Goodlass.
I’ve previously been critical about the abuse in care inquiry’s productivity and the actual independence of the inquiry process. The final report and its recommendations haven’t shifted that viewpoint – in fact, I’m even more concerned than before.
One of the most important outcomes that survivors needed from this inquiry was a clear path through the civil courts. It’s on record now with the inquiry that in the first decade of this century, the Crown deliberately and systematically sought to test its litigation strategy, set precedent and sew up any remaining holes in statute. A civil litigation attempt by survivors is blocked due to statutes of limitation, the ACC bar (which prevents anyone technically covered by ACC from engaging in a civil suit) and the question of vicarious liability, let alone the enormous cost involved in taking a civil suit against an entity with limitless budget.
Recommendations 75, 78 and 79 of the 2021 redress report dealt with the recommendation for reform of the limitations acts, a lifting of the ACC bar in these specific cases, and for the Law Commission to review any other obstacles to civil litigation, recommend corrective steps and report back within 12 months. The final report neither reinforces or follows up on this. Instead, it lets the Crown off the hook with recommendation 11. Here it says that “If the government does not progress the inquiry’s recommended civil litigation reforms (holistic redress recommendations 75 and 78 from the inquiry’s interim report”, it should reform the ACC act to provide tailored compensation and other suitable remedies.” The status quo with the Crown holding all the power remains.
At the same time this also highlights another glaring issue. The inquiry didn’t investigate the judiciary with regard to bias, or the legal profession (lawyers) with regard to ethical execution of duty. The police were called out as part of the Lake Alice inquiry but was there an investigation into how they treated complaints, and the decisions around taking something to prosecution? None of these entities appeared as part of the investigation streams but make up a critical part of the system. Compare this with the Australian Royal Commission into Institutional Responses to Child Sexual Abuse that commissioned work that sought to look at bias in the judiciary and highlighted a range of issues that they could learn from.
As advocates and civil society organisations in the inquiry lost faith in it, we started to lobby the United Nations, specifically the UN Committee Against Torture (UNCAT), following the pathway carved by some of the Lake Alice survivors. In its 2022 Lake Alice report, the inquiry strongly urged the Crown to meet it obligations to provide fair redress to survivors of torture and other cruel, inhuman or degrading treatment or punishment based on the inquiry’s interim report (2020) and redress report (2021).
In the final report summary just released, the inquiry has made no reference to those recommendations of the UNCAT. The term UNCAT is completely missing, yet the Crown has been making its case repeatedly to the UNCAT. Now, at the UN periodic review (2024), the Crown said it was waiting for the final report before deciding on redress for the likes of the Lake Alice survivors who the UNCAT found in favour of.
As the UNCAT pointed out, the inquiry has no bearing on international law and the government must meet its obligations for redress. So, there is no support in the final report for Lake Alice for redress under international law. Rather, recommendation 18 seeks parity of redress from the two settlement cohorts where one had legal fees subtracted from the settlement and the other did not.
All of this against the backdrop of minister Paul Goldsmith’s statement to the UN’s Periodic Review of New Zealand, where he said:
“Through the inquiry process, serious issues have been raised around possible breaches in international and domestic human rights in the care system, including the Bill of Rights Act 1990 and the Convention Against Torture.”
New Zealand has just spent $170+ million on an inquiry only to have a minister use the term “possible breaches”! His statement is of great concern because it again points to the minimisation position continued by the Crown.
A common request from survivors has been to not have to report to the perpetrating institution. There are a variety of reasons for this, from re-traumatisation to concern about fair process. Although this report sets out recommendations for a Care Safe Agency under statute, it specifies that the agency is largely a policy setter/watchdog/data collector. Survivors will still have to go to the perpetrating institution to report. The one saving grace could be that in its role, the Care Safe Agency can receive complaints about processes about entities under its purview.
There is no mention, I believe, of the issue of bringing enablers to justice and thus no guidance or framework for achieving historical accountability. In the case of the Crown, how does the Crown investigate and prosecute the Crown when it comes to past or current heads of ministries, politicians and the like? It would seem to me there is a conundrum here as police seek to use Crown Law, yet Crown Law might be a focus of a complaint? What mechanisms exist to work through this? Looking more broadly, it appears there is not a precedent of criminal accountability in New Zealand for those who have enabled abuse. With the passing of this inquiry, the question as to how to implement that goes unanswered.
In one sense, this has been New Zealand’s largest research project around the abuse of children in out-of-home care settings. Unfortunately, with the inquiry’s final minute they’ve locked all of the data away that they possibly can when adopting the data access strategy implemented by the Royal Commission of Inquiry into the Christchurch terrorist attacks. No accredited researcher can access the background information to better understand what happened, to assess the productivity of the inquiry, understand the obstructions placed in its way or the internal issues.
Instead we have a handful of case studies that don’t fully cover the investigation streams the commission said it was undertaking. If you’re patient, you can watch the livestream recordings of the public sessions to screenshot some evidential documents flashed up on screen. However, we are left with significant holes and therefore much less understanding than we should have. Of particular interest to me is the fact there is no case study covering the Catholic church, yet the final report notes that the incidence of sexual abuse of children was highest in the care of this entity. The result is the bishops are relaxed, the fear of the inquiry has passed, they can see they are safe, untouchable. What a waste of a significant body of knowledge thanks to poor productivity and locked-up data.
The final report is here now. The Crown has it. Yet the Crown has delayed fair redress to Lake Alice survivors while waiting for it, ignored the information pouring out of the public hearings or in the interim reports and continued to make decisions on the care of children. This has been the case throughout the inquiry. In 2022, Aaron Smale asked government minister Carmel Sepuloni, during her push for a monitoring mechanism, whether she had read the redress report. She had not.
Then-minister Hipkins said the Crown accepted the redress recommendations and proceeded to roll out the Crown’s version of rapid redress on MSD survivors. The redress entity is still in planning two years later. This year we hear Goldsmith talk of “possible breaches” to human rights closely followed up by the same from Erica Stanford, minister in charge of the government response, in her cabinet briefing papers. This month, we roll out “trauma-informed” bootcamps despite international evidence and horrific accounts of other military-style interventions highlighted in the inquiry’s testimony.
The Crown picks and chooses what it actions, it still holds all the cards, the status quo is firmly in place – and I fear for the survivors and our children now and in the future.
