Govt to make it harder for some abuse survivors to get redress

The Government plans to pass a law making it harder for state abuse survivors with a history of violent or serious offending to access redress – something a lawyer and survivor advocate describes as “unjust, discriminatory, and contrary to the principles of trauma-informed, survivor-focused redress”.

This is despite overwhelming evidence, including in the reports from the Royal Commission of Inquiry into State Abuse, that there is a strong link between the abuse suffered by these people at the hands of the state and subsequent offending.

At the same time, the Redress System for Abuse in Care Bill, which was introduced to Parliament on Monday as part of the coalition’s $774 million redress scheme, also explicitly provides legal cover for state agencies when they apologise to survivors who suffered while under their care.

This comes as the Government’s redress scheme is being tested in court, with Lake Alice survivor Malcolm Richards continuing his court battle alleging the scheme fails to provide fair and proper redress as required by international law.

Labour’s spokesperson for children, Willow-Jean Prime, says she’s concerned the bill doesn’t follow the redress recommendations of the Royal Commission, adding that it hadn’t been designed with input and collaboration from survivors. These concerns are echoed by the Green Party, and expert lawyers who have worked with more than 1400 survivors of state and faith-based abuse.

As Newsroom has reported, the state has gone to lengths to minimise, cover-up, deny and avoid liability in regards to the abuse that occurred and the harm caused since then. There are ongoing criticisms from survivors about the lack of accountability and fair redress.

In a move first signalled in May, this proposed law will explicitly remove the automatic eligibility for abuse survivors to access financial compensation as part of the redress process, if they have a conviction for a violent or serious criminal offence.

“The Government considers that making payments to individuals convicted of serious violent or sexual offences, without further independent consideration, risks bringing the redress system into disrepute,” the explanatory note of the bill says.

Instead, the legislation presumes that those who have committed a serious violent or sexual offence, and have been sentenced to prison for five years or more, will not be able to automatically access financial redress.

A Redress Officer – a former judge, King’s Counsel, or senior lawyer with appropriate knowledge and expertise who is appointed by the minister – will make case-by-case determinations on whether those with a serious history of offending will be eligible to access financial compensation.

This law would not apply to Lake Alice survivors who are eligible to access redress for torture, regardless of their criminal histories.

It also sits in the context of the coalition Government considering whether to block gang members from accessing redress schemes – something it ultimately decided against.

In May, minister Erica Stanford said this decision was modelled on approaches taken by Australia and Scotland – an approach the Royal Commission recommended against. “This will involve an independent decision maker who will need to assure themselves that a redress payment would not bring the scheme into disrepute,” she said at the time.

On Wednesday, Stanford told Newsroom the Government had taken “a reasonable and pragmatic approach through the middle”. The bill was due to have its first reading on Thursday, but that would now be postponed due to the passing of former Prime Minister Jim Bolger.

These moves to make it harder for some survivors to access financial redress comes despite the Royal Commission’s findings, and other research by people such as Moana Jackson, drawing a strong link between the abuse people suffered and their offending later in life.

The commission concluded that in many cases, state care became a pathway into gangs and into prison.

Survivor and academic Dr Rawiri Waretini-Karena told the commission: “I was 18 when I walked into the yard – never been to prison before. I walked out into the yard and there were 50 men there. I knew 45 of them, that’s because they were beside me in the social welfare homes, the family homes and the boys’ homes. So that’s when I realised there was a pipeline to prison process.”

Wiremu Waikari (Ngāti Porou) told the commission he had minimal education at Kohitere Boys’ Training Centre, but was exposed to and learned about criminal conduct and activities from other residents on a daily basis.

“It was the links I made in Hokio and Kohitere that led me to joining the Mongrel Mob when I was 16 years old. I loved it because I already knew them – I felt more at home with Mob members than I did with my own family.”

Waikari said the boys’ homes fed gangs “disenfranchised young people who were not nurtured by Māori or the state” throughout the 1960s and 1970s.

“That is definitely where my time in state care pushed me, and hundreds of other unhappy Māori kids, who weren’t sure of themselves in any world.”

Excluding offenders ‘undermines the purpose of the scheme’

Lawyer Sonja Cooper has written a submission opposing the bill, saying it disregards the proven link between childhood abuse and criminal behaviour. 

“This brings into question lawmakers’ basic understanding of the impacts of childhood abuse, including their understanding about the causal link between childhood abuse and future criminal behaviour.”

Cooper refers to the Whakapakari Programme on Great Barrier Island as an example, where children were placed by the Child Youth and Family Service (the predecessor to Oranga Tamariki) in a sort of bootcamp. The Royal Commission found that all the children placed at Whakapakari ended up in the adult justice system.

The proposed law is also likely to have a disproportionate impact on Māori and Pasifika, who are over-represented in the state care system and in the criminal justice system. Disabled people are also likely to be disproportionately affected.

Cooper’s submission states concerns about the administrative burden the bill may place on lawyers, the additional pressure the courts may experience if legal battles are the only way for these survivors to access financial compensation, and the issues of double jeopardy and retroactivity.

“Justice must be inclusive. The abuse suffered by children and vulnerable adults in ‘care’ does not lose its significance because of what those individuals may do later in life,” she says.

“To exclude serious offenders from redress is to deny the reality of trauma, perpetuate systemic injustice, and undermine the very purpose of this redress scheme.”

This legislation and redress scheme, as it is currently written, will further marginalise some of the most vulnerable people, and continue to deny them  the voice the state has denied them for so long, she says.

“It is cynical for the Government to consider it can silence survivors on account of what they did later in life. It looks very much like the Government is trying to limit its liability and culpability for the adult that the state – at least in part – created.”

Meanwhile, the Green Party’s Kahurangi Carter says all survivors of abuse in state care deserve accountability. “The entitlement to financial redress is not a reward for good behaviour, it is accountability that recognises the state caused harm.”

If any survivors have then caused harm, they too must be held accountable and the victims of that violence deserve justice, she says. “But we must separate the state’s actions from the behaviour of survivors.”

Survivors and the Royal Commission were clear about the need for an independent redress system, she says. “The Government again has decided they know best and ignored this call which would go a long way to healing for survivors,” Carter says.

Limiting the state’s liability

The bill also explicitly exempts state agencies from legal liability when making apologies to survivors as part of the redress process.

“Apologies form an important part of the redress provided to survivors of abuse in care. However, the risk of liability following an apology in a context where it has not been possible to fully establish the facts provides a disincentive to the making of fulsome apologies by core state agencies,” the explanatory note of the bill states.

The legislation provides that personal apologies given by core state agencies as part of providing redress for abuse in care will not be admissible as evidence in civil proceedings that seek remedies for abuse in state care and are not to be treated as expressly or implicitly admitting guilt.

The Government hopes this will allow government and state agencies to make apologies that meet the needs and expectations of survivors.

However, the broader issue of whether the state was taking full accountability and offering fair and proper redress remains a contentious one.

The Royal Commission’s final report also detailed the lengths institutions have gone to cover up or minimise the abuse and dodge moral, legal and financial responsibility.

“There has been widespread abuse and neglect in state and faith-based care which has had a devastating personal and multigenerational impact on survivors, their whānau and society as a whole,” the commission said.

“It has been minimised and covered up by the institutions responsible. Significant resources have been used to deny survivors their voice and to defend the indefensible. This must stop.”

Commissioners went on to say: “Political and public service leaders spent time, energy and taxpayer resources to hide, cover up and then legally fight survivors to protect the potential perceived costs to the Crown, and their own reputations.”

Faith leaders similarly fought to cover up abuse by moving abusers to other locations and denying culpability.

The report said despite decades of calls for investigations, inquiries and redress, survivors had been “unheard, disbelieved, ignored and silenced”. 

Their experiences had been minimised or dismissed, and they were told by those in power that the abuse and neglect was not systemic.

Any recognition to date had been “piecemeal” and “insincere”, took years to extract from the state and faith-based institutions and “fell far short of any notions of fair redress”. 

Now, the Government is seeking to pass a law that would help protect state institutions from any future legal liability when apologising for the abuse and neglect that occurred.

While survivors have been seeking apologies for what happened to them – something that began with the Prime Minister’s formal apology in November – there has also been ongoing criticism regarding the lack of accountability.

As reported by Newsroom, some public servants and those carrying out work for the state – including those in positions of power – have continued their work inside government and state institutions despite being named in the Royal Commission’s reports.

After Stanford said she had put the public service on notice, the Public Commission carried out its own examination of public servants’ conduct in relation to the abuse that occurred and the subsequent minimisation, cover-up and re-traumatisation.

After the state examined its own conduct, the Public Service Commission concluded in a February report to Public Service Minister Judith Collins that no action would be taken against the handful of people who remain in the public service.

One of the focal points for survivors when it comes to not being held accountable is the current solicitor-general, Una Jagose.

Survivors, who have been re-traumatised by the state’s decades-long effort to cover up the abuse and torture, say Jagose is compromised by her track-record of how she has dealt with survivors and their claims during her time at Crown Law.

On Tuesday, Attorney-General Judith Collins announced Jagose would be leaving the post in February – two months before the official end of her term, after 10 years in the role.

A Bill of Rights Act vetting declaration completed by Collins says the bill is consistent with human rights law, but does raise points relating to the fact that it will be harder for some survivors to access financial redress (though not impossible), while also noting the requirement on survivors to disclose their criminal history.

No Regulatory Impact Assessment was completed for this bill, but the departmental disclosure statement does also point to the retrospectivity of the legislation, which applies to anyone who has made a redress claim on or after May 9 (when the Government first signalled these aspects of its redress system).

The proposed legislation comes as the separate Lake Alice redress scheme wraps up, with the finalisation of payments to those who were tortured at the Manawatū psychiatric facility.