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OPINIONSocietyMay 9, 2023

While the inquiry drags on, there’s no justice for abuse in care survivors

A gavel with a desk calendar and a pile of money notes on a cream background
Image: Tina Tiller

As the royal commission of inquiry is increasingly bogged down in bureaucracy, abuse in care survivors like him are losing hope of seeing redress delivered any time soon, writes Steve Goodlass.

On April 12 the Abuse in Care Royal Commission of Inquiry received a deadline extension for its final report. A press release from the commission, titled “Royal Commission welcomes extension as new evidence emerges”, read as if it had been given an extension out of the blue, rather than addressing the questions of how it had just had 400,000 more documents dumped on it and by whom.

Commission chair Coral Shaw waxed lyrical about the commission’s responsibility to the courageous survivors, the 133 days of hearings and various survivor engagement hui across the motu. For those of us sitting out in survivor land, it was yet another example of how poorly run this commission has been and cause for even more concern about any chance of it ever being truly effective. Shaw prefixed her comments by saying, “The scale of abuse is beyond what anyone had ever imagined at the start of this inquiry.” 

But the first interim report in December 2020 estimated that up to 250,000 children were abused in the care settings within scope. So they knew it was a big task way back then.

Personally, I felt the writing was being scrawled across the wall early on when I sat in a room as a member of the Survivor Advisory Group (SAG) listening to then executive director of the commission Mervin Singham. He was imploring us to speak directly to the commission about issues rather than to the media. It was, “Guys, guys, if you’re unhappy about what’s happening with the commission then please discuss it with us rather than use the media. Otherwise, when we go to the treasury for more budget they’ll say we haven’t been doing a good job and they’ll turn the tap down [the funding tap]”. Even after hearing that it took a while to realise that the royal commission wasn’t as independent as I thought. It was beholden to the government at key junctures due to not being bulk funded. The government was very much in control.

Singham oversaw a budget blowout as the royal commission went on a spending spree to create an Auckland-anchored, overly legalistic system. This was a key juncture, because in a deal for more money, the commission gave up its discretion to investigate from 1999 to the present day. For survivors, it appeared that the commissioners just rolled over on this negotiation. This contraction of scope would have very real implications for any support the Lake Alice survivors could expect for their cases before the United Nations. Singham departed the commission for a promotion in the public service heading up a new ministry, along with making money off his side hustle of impressionistic art inspired by the survivor accounts he’d been party to. The commission went into a version of “statutory management” with a DIA-appointed team. The government was even more in control.  

Survivors were pleasantly surprised that the redress report in 2020 was a decent piece of work after the chaos around the preceding hearings and the shallow inquisition of institutional witnesses like Una Jagose from the Crown Law Office. At times, counsel assist Simon Mount looked like he was very uncomfortable putting questions to his boss Jagose. The recommendations of the report were good, but fell short of being explicitly actionable, a somewhat amateur mistake when dealing with government. Thus, they became open to interpretation and that’s what the government did. Chris Hipkins, the response minister at the time, spun the government’s intention to simply speed up the same old state claims processes in the name of rapid redress. He went on to completely ignore rapid faith-based redress by claiming they had existing well-defined systems that already acted quickly. How poorly informed he was to think that was the case and that rapid redress would ever come from the churches.

The Lake Alice and Marylands hearings were examples of all that is shocking and wrong across the spectrum of childcare in New Zealand. The Lake Alice report was late, but fulsome. However, out in reality, Lake Alice survivor Malcolm Richards couldn’t even get the government to acknowledge the UN finding in his favour around his right to fair redress. The commission remained mute on his treatment, probably because his UN case was “present day and out of scope”.

The government managed to railroad the Oranga Tamariki bill that stripped the Office of the Children’s Commissioner of its powers and buried the responsibility for children’s care firmly back inside a ministry in the form of ERO. All this despite more than 400 select committee submissions against this most shocking bill. Meanwhile, the commission was mute.

Today, we’re still waiting on the Marylands report. It is late. In fact, we’re still waiting on the searchable text transcripts from the last batch of hearings. Yet Coral Shaw continues to point to the 133 days of hearings as if that’s the defining landmark we should be proud of. A basic comparison shows just how unproductive this commission is when compared to the Australian Royal Commission into Institutional Responses to Child Sexual Abuse, which was announced in November 2012 and released its final report in 2017. In five years the Australians:

–        held 400 days of public hearings (comprising 57 hearings), all over Australia (flight time from Brisbane to Perth is almost six hours compared to Auckland to Dunedin which is two hours… and the commission never sat in Dunedin).

–        held seven round tables.

–        published five consultation papers.

–        published 11 issues papers.

–        published 61 research papers from research commissioned by academics and agencies.

–        Justice McClellan (the chair) presented at 27 conferences or similar during the commission, relaying the research findings they had at the time – useful findings such as their mock trial research that showed the judiciary was out of touch with the reasons why child abuse victims take such a long time to come forward.

–       wrote up a case study for every hearing and published them.

–       underspent the budget by $30m to come in at $342.3m. That works out to a $13 investment per Australian citizen (keep in mind all the travel they did with that money too).

It’s already been five years since our royal commission of inquiry was announced in 2018 and it’s no longer clear to New Zealand survivors what the budget allocation is. Let’s say we add the $56m blowout (it ended up at $70m) to the $90m for the final two years – we come to $160m. Divided by five million people, that equals $32 per citizen and counting.

We’re now left with a delay for the final report and we’re supposed to believe that they’ll be able to pull the rabbit out of the hat while we’re still waiting for reports from the public hearings. From the outside it appears that staff turnover has been extreme, and we wonder if there is anyone writing reports who was there from the beginning and still understands the full context? Counsel assist Simon Mount appears to have “disappeared” somewhere along the way and commissioner Julia Steenson has departed for greener pastures. The extension means that whenever there are any recommendations, there will be no ministerial budget to action them until 2025.

Meanwhile the Crown has cranked up the Crown Response Unit (CRU), which is tasked with developing the independent redress entity. Despite its $14.5m budget, it’s already missing deadlines while running predetermined consultations with survivors (we have three poor options for you to pick from, pick one). One wonders if any attention is being paid to the difficulties the Australians have had implementing their own redress system.

The chance of survivors seeing any redress any time soon is extremely slim and begs the question, what hope is there? Just last week, Aaron Smale reported for Newsroom that the Ministry of Social Development was trying to dissolve its current backlog in the name of “rapid redress”. As Smale pointed out, they continue to make the settlements “full and final” and ex gratia (accepting no liability). All this despite the commission recommending that any settlements, since its redress recommendation, should be considered interim. Hipkins has been on the record endorsing this recommendation from the commission. This all illustrates that despite the copious apologies during testimony at the commission, there is no intention for the incumbent bureaucracy to change their ways. Missing from the spotlight is Jacinda Ardern, the then PM who helped make this commission happen, but in contrast to Australia’s Julia Gillard, she would appear to have no stomach for it.

It’s crystal clear now that three things must happen immediately.

  1. To protect our children today, we must enshrine the right of the child to be free from abuse into statute. In doing so we would make institutions criminally liable for abuse in care.
  2. We must open a way through the courts for civil proceedings. Institutions like the Crown and the churches, which are protected by the statute of limitations, will argue that they have no vicarious liability, and are protected by the ACC legislation from civil suit. The commission has shown that the Crown has made use of all technical defences in the past and not acted as a model litigant. The churches threaten the same in their deeds of release, if you actually manage to get to the stage of receiving their insulting ex-gratia financial redress. Without the courts being open, there is no check or balance in the system and we cannot begin to ascertain what fair financial redress actually is.
  3. The government needs to make good on the intent of the royal commission’s rapid redress recommendation and set out a clear path forward for urgent redress for survivors, who have been through previous redress processes that we now know to be patently unfair.

Until we see action on these recommendations, then the status quo painfully remains and there is no justice for survivors. 

Keep going!