For abuse in care survivors, an apology without action means nothing

As we drew closer to the date of the public apology, the response minister Erica Stanford began preparing abuse victims for disappointment. It’s clear that redress will not accompany the national apology tomorrow. There are a number of “extraordinarily complex decisions” yet to be made “which are still going through the Cabinet process”, she said last week. For those abused in faith-based care, it’s equally unclear whether the government will apologise for its role in allowing this abuse to occur and whether it intends to hold the churches to account. I’ll use the term “victims” here because an apology without action returns survivors to the position of victim again.

One gets the feeling Stanford is stuck between a rock and a hard place. On one side is the victim community that needs accountability and fair compensation, on the other is Cabinet and other public service actors who continue to play pivotal roles in the abuse crisis to the present day.

What’s been very concerning over the last few weeks is the way key terms have been used interchangeably in media when they simply shouldn’t be. To do so misleads the public and detracts from the true gravity of the situation victims face. A settlement is not compensation. Rather it’s a poor solution forced on victims because there are no further options to pursue. After running its test cases like White and Wiffin through the early 2000s, the Crown set legal precedent and then generally fell back on its litigation strategy, which is to “settle meritorious claims”. The issue with this is that the victim is presented with an insignificant “take it or leave it” settlement, derived from a formula. That is provided ex gratia and with no wraparound services. Essentially a head shot and then a kick in the guts when you’re down. The 65-page guide on ex-gratia payments provided by Crown Law defines it as: “(i) a payment made without the giver recognising any liability or legal obligation; (ii) the payment is made out of goodwill or a sense of moral obligation.”

If you’ve read any of the final report or watched any of the victim testimony from the abuse in care inquiry, you’ll know that one of the strongest reasons for appearing was the desire to “prevent another child having to endure what I endured”. At its heart, the ex gratia settlement sends the absolute message that the Crown or the church accept no liability, and that they will not be held accountable for what happened to you. The flow-on is that without accountability, future prevention is lost. There is no impetus for significant change in the institution because the settlement amount is not punitive enough to force it, no one loses their job (historically they’ve often been promoted), and it’s highly unlikely to be investigated by the police.

This is all swiftly packaged up with the coup-de-grace of a full and final settlement, just in case the first two hits didn’t hurt enough. The Ministry of Social Development’s rapid payments fact sheet states that the maximum settlement from MSD is $30,000 and you’ll receive that only if you spent more than 15 years in care and that care involved sexual, physical, psychological abuse and neglect. 

To illustrate just how unfair that is, consider this. In 1997, as a protesting student, now Labour leader Chris Hipkins was wrongfully detained overnight and may have been assaulted by police, along with 40 others. A civil case was taken and not barred by any statutes, and the government settled 12 years later. Hipkins is reported to have received $5,000 for the denial of 12 or so hours of liberty and possibly some rough handling. How is this fair? Of note, the case was taken on contingency (the lawyer is paid only if the case is successful) and the lawyer received his $50,000, which probably didn’t cover his costs for a 12-year action.

In the case of abuse in care victims, even if you could afford the considerable money to try to pursue compensation in the courts, you can’t. The way is barred by statutes of limitation, the ACC acts and the legal precedents that were set with the Crown’s test cases.

New Zealanders understand the word compensation because we know about ACC. If you sustain an injury at work or on the sports field and you have a job, then ACC will pay 80% of your wage and seek to rehabilitate you back to a functioning member of society.

However, if you were sexually, physically, mentally abused or neglected as a child, then ACC’s of limited help to you because it is a veritable minefield to navigate. The inquiry commissioned a report from John Miller Law to explore the issues. It’s a shocking read as Miller details issues at every level like:

• How your date of injury dictates which version of the act is applied and how that assists or hinders you.
• That the date of injury for sexual abuse was being taken as the date you first disclosed the abuse to a medical professional rather than the date the abuse took place.  
• How cover for physical, psychological or mental abuse sustained in care is not covered.
• How changes in the 2001 act require hard causal links to be drawn.
• That loss of prior earnings has been unobtainable in recent versions of the act until just this year when a high court decision set precedent in favour of victims.
• How a pain and suffering lump sum is unavailable for sexual abuse victims.
• That the assessment tools used by ACC are unable to fairly assess the victim and that there are constant traumatising reassessments.

As Miller puts it, the ACC system results in an “inequality of arms” whereby the victim needs to have the financial means to engage representation to help them navigate through the process and receive the entitlements they are due. At that point they’ll likely find they’re no better off because the compensation component is unable to help them reconstruct their life and they’ve spent considerable money trying, along with the associated trauma of numerous assessments.

So abuse in care victims continue to wait for redress, which brings us to the need to not muddle the term redress with compensation or settlement. Redress is the overarching concept of correcting the wrong or compensating for it, and it’s not just about money. Redress should seek to restore an individual as if the harm or injustice had not occurred. That can take many forms, like getting some justice through accountability, financial assistance, ongoing medical therapy and so on. We stand on the cusp of something fundamentally different for abuse in care victims in New Zealand, but will it happen?

The telegraphing from government would indicate that it’s unlikely. The redress plan continues to be a closely guarded secret, and a plan that was formed in secret. Despite engaging with victims for input, those very victims were gagged during the process and continue to be, unable to give feedback or seek inputs from their wider networks.

Similarly, the responses to date for Lake Alice victims are underwhelming. The callous provision of a $20,000 payment for those with six months or less to live will probably cover a funeral and some time off work for their loved ones. I hate to think what’s in the contract that has to be signed in order to take up the offer. The recent announcement around resolving the inequity around deductions of legal fees for one of the Lake Alice cohorts rights an inequity. However, it shrouds the larger issue, which is that Lake Alice survivors who experienced torture are due immediate redress under our obligations to the UN Convention Against Torture (UNCAT). They don’t need to wait for a national redress system, because our obligations under the convention are crystal clear. They should already be receiving redress now, but they aren’t.

In his submission to the 2023 periodic review of New Zealand by the UNCAT, human rights lawyer Ben Keith sums up the way in which the government continues to mislead the committee around the matter of Lake Alice: “… it will be seen that these measures are not accurately described and, in any case, fall well short of meeting Convention obligations as found by the Committee”.

Aaron Smale’s recent report for Newsroom includes a 2014 video of Judith Collins in front of the UN, providing an ironic response to a question from Iran. She states “there is no state torture in New Zealand”. Smale goes on to detail, in depth, that Collins is more than aware of what was going on at Lake Alice. In a subsequent article, Smale reveals that the new chair of the Crown Response Unit was the adviser to Collins on human rights matters when she made that statement.

A key consideration here is that New Zealand continues to hold a reservation to Article 14 of the UNCAT, the article that deals with the provision of redress. The discretion for redress in New Zealand resides with the attorney general… who is currently Judith Collins. Victims are currently calling for Collins to hold the solicitor general, Una Jagose, to account for her part in the government’s treatment of victims and the “steps” that Crown Law took or omitted to take with investigations and civil claims. Collins finds herself in a bind because if she does that then she will fall, followed by many Crown or ex-Crown officials. Coupled with the fact that Lake Alice was not the only place where torture was occurring, the Crown finds itself increasingly exposed.

The Crown continues to fall woefully short of its obligations to the various UN treaties and charters. It continues to fail to hold itself and its delegates accountable, nor does it hold the churches accountable. Even something as blatant as the alleged modern-day slavery at Gloriavale is somehow ignored by various ministries. The Crown knows that if it starts to hold the churches to account, then it must hold itself to account.

Until a prime minister can take a bold step to hold the Crown accountable then the status quo remains. Prevention of abuse in care in the future is left to nothing more than chance. Victims will not receive fair redress and a means to help get their lives back on track and the horrific cycle will repeat, and trauma continue to radiate through society.

If the Crown and the churches can foster the means for the torture, rape and beating of chilren without being held accountable, then they can get away with anything.