Sorry means you don’t do it again

Comment: Tomorrow Prime Minister Christopher Luxon will apologise to thousands of people who were abused when they were in the custody of the state. 

For many survivors it will be hugely important to hear a Prime Minister acknowledge what they went through was wrong and apologise.

But those words will be rendered hollow if the Crown’s response does not follow through on the words.

Luxon surprised a number of people, myself included, when the Royal Commission’s final report was tabled in July by acknowledging that the abuse suffered by hundreds of children at the Lake Alice adolescent unit in the 1970s was torture.  And he said sorry.  

For over 50 years successive governments have avoided facing up to the full reality and responsibility of what happened not only at Lake Alice but in a number of state institutions. So Luxon’s words were a breakthrough.

The Lake Alice case is something of benchmark, not only because it was one of the worst cases of institutional abuse but because it was the first case where victims took civil cases against the Crown and the Crown did its utmost to avoid accountability.

In 2002 victims were paid out around $100,000 but many of them lost around 40 percent of that in legal fees that should have been paid by the Crown.  That is now going to be paid out, but without any additional interest or calculations for inflation. 

But now the Government is in a position to provide something substantive to victims not only of Lake Alice but to the thousands who went through state institutions.

The out-of-court settlement was ex gratia, which is the Crown saying it’s a gift rather than compensation, thereby avoiding any legal liability. Will this government couch any settlement in the same way?

And what should the Crown be paying out to victims who went through torture?

I’ll get to the numbers. But throughout my coverage of state abuse there have always been two parts to the story that I’ve tried to emphasise. 

First, the abuse itself, which is terrible enough on its own.

But then there was the institutional cover-up and failure to protect children or hold perpetrators accountable.  This extended to individuals and institutions deliberately covering up crimes committed by the Crown.  This isn’t just my view.

The Royal Commission made these statements in its final report: “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.”

“Successive Government ministers and heads of government agencies who were responsible for the law and policy settings had accountabilities in law to children, young people and adults in their care that they failed to uphold.”

While the report extensively documents the abuse of children, it also goes into detail about how the Crown responded over decades. I attempted to distil this in a five-part series that included other documents from my own research.

Luxon’s apology will be only as good as the Government’s willingness to hold those accountable who were involved in this cover-up. To date his government has shown no such willingness.  

I asked Luxon’s office specific questions on this including the following:

– is it appropriate for Judith Collins to hold the role of Attorney General when she denied on behalf of New Zealand that we didn’t commit state torture in New Zealand, particularly when she had access to copious evidence that said otherwise?  Una Jagose admitted at the Royal Commission that what happened at Lake Alice met the definition of torture and that the Crown had always known because it was in the file, the same files Judith Collins had access to when she was Minister of Justice. The Police admitted at the Royal Commission that their investigation was a failure, an investigation that concluded when Judith Collins was Minister of Police.  The Attorney General holds the power to decide whether charges should be laid under the Crimes of Torture Act, a power the UN has criticised, and holds the power to veto Article 14 which is about redress. The UN has also criticised this.  And yet we have an Attorney General who has denied New Zealand commits torture when you have admitted, as Prime Minister, that we have.  

– Is it appropriate for the Una Jagose to retain the position of Solicitor General when Crown Law withheld evidence from Police in 2020? She has also withheld evidence from lawyers representing victims and victims themselves.   This is all laid out in my series.  It bears repeating that the allegations made by victims were not only credible, they were criminal.  Crown Law knew this.  Jagose was also involved in the White case, where the Crown denied the victim’s allegations, despite being aware that one of the main perpetrators had convictions for sexually assaulting children at Hokio Beach School. The whole purpose of the Crown’s defence in the White case was to thwart any attempt by thousands of victims to obtain redress for the crimes committed against them

I know victims want to see accountability.  Will the Attorney-General and Solicitor-General be held fully accountable for their past involvement?  

To date I have received no response. By his silence Luxon has implicitly aligned himself with the actions of the Attorney-General and the Solicitor-General.

He can’t apologise to victims for the abuse they suffered, but then allow those who wronged those victims by the Crown’s continued denials and cover-up to continue in their positions. 

If Luxon fails to impose any consequences on Judith Collins and Una Jagose for their involvement, then it won’t be an apology but an insult to add to years of insult.

I asked the Minister of Justice, Paul Goldsmith, some questions too, including, his view on some of the statements made by Justice Miller (now on the Supreme Court) in a test case known as the White Case in 2007.  I asked Goldsmith whether he had: “given any thought to legislating to annul the judgment in the White Case?”

“Is the minister comfortable with the comments by Justice Forrest Miller in that judgment where he found that although Earl White had been sexually assaulted at least 13 times as a child while at Hokio Beach School, that this sexual abuse was “embarrassing for him, but not traumatic”?  

“Does the Minister believe this decision should continue to stand as case law which prevents thousands of victims of state violence against children from obtaining proper redress that is determined by the courts and not the government departments that are responsible for the abuse?”

I received the following response from Goldsmith’s office: “Ministers are prohibited from commenting on any specific court cases or decisions. Therefore, the minister will not be commenting.”

However, Goldsmith has been happy to give his view on other court decisions, and to intervene to change them if he and the Government sees fit. In a Waitangi Tribunal report about Goldsmith’s proposed amendments to legislation regarding customary title to the foreshore and seabed, Goldsmith told Cabinet “that the Crown considers the courts in Re Edwards (High Court and Court of Appeal) incorrectly interpreted the test”. The Tribunal found Goldsmith did not provide any credible evidence to back up his argument, ignored advice to the contrary from government officials and could not justify his position with anything other than his opinion.

I asked questions of the Minister of Police, Mark Mitchell, when he first came into office about a police complaint by Lake Alice victims about obstruction of justice. I asked Mitchell:  “I wonder if the minister could explain why the police have been so tardy to respond to a criminal complaint on these matters.” 

I haven’t received a response.

Luxon had no option but to acknowledge the torture finding – the Royal Commission had made a finding of torture; the UN found New Zealand in breach of the Convention Against Torture; a Court of Appeal upheld a High Court decision that referred to what happened at Lake Alice as torture.  The decades-long denial and obfuscation by the Crown had finally run into the truth.

There was no way Luxon could dispute the Royal Commission finding – it was partly based on evidence from the Solicitor General Una Jagose admitting that what happened to children at Lake Alice met the definition of torture.  She also admitted that the Crown had always known that what happened was not medical treatment because it was in the file. 

But the Crown has still been stalling and trying to find ways to avoid the consequences of that admission. After more than 50 years of the Crown trying to avoid liability for what happened at Lake Alice and many other state institutions where children were abused, now the Crown has shifted tactics. 

A survivor advisory group was finally told by bureaucrats that the Crown would not dispute the Royal Commission’s finding of torture regarding Lake Alice, after being constantly asked.  They were also told they could not disclose this to people outside the advisory group, but this imposed secrecy was never explained. But there was a request from victims for independent legal advice to try and understand the legal implications of this admission. That request was denied, despite this announcement having massive legal consequences.

More games by the Crown

There are indications that Crown lawyers and officials are still playing games in the background. 

A Cabinet paper in July this year said:

“The Government’s acknowledgment that some survivors of the Lake Alice Unit experienced torture, as described in this paper, does not create any new liability on the Crown to provide redress.”

This would have been the basis for Luxon’s frankness about torture when the Royal Commission’s final report landed. But lawyers I’ve spoken to say the legal basis for this statement in the Cabinet paper is dubious.

The Cabinet paper’s statement was also made before Education Minister Erica Stanford, who is also the coordinating minister for the Crown’s response to victims, met Lake Alice survivors.

Stanford met Lake Alice victims on the day the Royal Commission report was tabled in Parliament and was quickly on the back-foot when the victims were raising questions about legal obligations under the UN, including the Istanbul Protocol, and New Zealand’s Crimes of Torture Act.

Stanford appeared blindsided because officials hadn’t briefed her on these obligations, even though the victims had raised them with the same government officials over months.

The Cabinet paper’s blasé attitude towards further legal liability was unravelling.  It has also delayed the Government’s objective to have a redress package in front of Lake Alice survivors by the time the apology was delivered.

Stanford was again embarrassed when she found out (through my reporting) that the person appointed to the position of chief executive of the Crown Response Unit, Rajesh Chhana, had previously been involved in appearing before the UN on the matter of torture in his role at the Ministry of Justice. Stanford is understood to have stipulated to officials that she didn’t want anyone who had previous involvement in dealing with state abuse. 

New Zealand had long been obfuscating on its response to the UN about Lake Alice and the UN had repeatedly pressed the New Zealand government to take action on its obligations. When the UN found New Zealand in breach of the Convention Against Torture in 2019, the actions of many of those concerned, including the previous Prime Minister Helen Clark, Judith Collins, Rajesh Chhana and a number of others, were in question.  The finding of torture by the Royal Commission reinforced that.

Survivors I have spoken to have a high regard for Stanford and believe she is working hard to do the right thing by them. But they retain a high level of distrust for those who are advising her, and for very good reasons. Many are tainted, even if it’s only by association.

But Stanford continues to have to rely on this advice and this advice is repeatedly being exposed as faulty.  I’ve been told that Stanford has requested legal advice outside Crown Law but this is being blocked by Collins. 

Collins had denied New Zealand committed state torture in front of the UN in 2014 when she was Minister of Justice – so why is she not recusing herself from this matter now? 

At the time she made that denial she would have had access to a mountain of evidence gathered over the previous two decades that pointed to torture. Her colleague and Attorney-General at the time Chris Finlayson had acknowledged in a letter to lawyer Sonja Cooper that the Lake Alice allegations were verified and were not acceptable practice for the day. So Collins was denying facts in an international legal forum.

Furthermore, New Zealand has expressed a reservation on Article 14 of the Convention Against Torture, which is about redress.  Instead, the Attorney-General has veto powers over Article 14, a structural flaw the UN has repeatedly criticised because the Attorney-General sits within Cabinet. That theoretical flaw is now a reality, but is also amplified by Collins’ previous denial of torture at the UN.  Which means Judith Collins has the final say over redress for torture at Lake Alice when she has previously denied it happened at all.

But Collins’ denial was part of a decades-long pattern that is spelled out in the Royal Commission’s report and in the reporting I’ve done over the past eight years.

Betrayal trauma

The impact of this ongoing denial and cover-up has a name – betrayal trauma. Jennifer Freyd, Professor of Psychology at Oregon University, coined the term to describe and diagnose the trauma that is experienced by victims when they are victimised again by the denial of the original abuse by someone in power.  That denial can also be an institutional betrayal. The denial and all the institutional behaviour that goes with it is not only an abuse of power, it is a separate, additional form of abuse that compounds and prolongs the original trauma. The failure of institutions to do what they are morally and legally required inflicts further harm on victims.

Freyd made an observation about religious organisations that also applies to state entities: “Prioritising damage control rather than addressing an underlying problem with abuse has characterized the cases of systemic abuse.” This pretty much sums up what has been going on in New Zealand for decades.

Luxon’s apology cannot be limited only to the original abuse, a past tense sorrow for events in the distant past that no one supposedly knew about.  There are people in high level offices still who are tied to the institutional betrayal of victims because they knew what the facts were but their offices or agencies proceeded to act in ways that were about protecting the Crown from legal and financial liability. 

Parliament was part of this betrayal. A number of Members of Parliament were responsible for the response to victims when they came forward as adults and asked for accountability either through the courts or through direct contact with the ministries concerned.

The Police were part of this betrayal. They repeatedly failed to investigate crimes against children committed by state employees, despite repeated requests and an abundance of evidence. The failure was so bad they had to apologise to Lake Alice victims at the Royal Commission hearing. They have yet to investigate those who obstructed their investigations or withheld information.

The media was and is part of this betrayal. When I first started covering this issue, I did a Google trawl to see what previous media coverage there had been.  And there were intermittent stories over decades, and many of them were very good journalism. But I also noticed a pattern. There would be one or two stories that would be published or broadcast in a flurry of coverage, and then the media attention would peter out and nothing substantive would change for the victims. 

How is it that there can be hundreds of thousands of children abused by state institutions over decades and the media’s coverage is intermittent at best? Is it because many of these victims then end up being marginalised as adults, ie. they end up in gangs and jail, and are therefore vilified by the media rather than perceived as victims?  Is it because the majority are Maori and those who aren’t are poor or disadvantaged Pakeha, and therefore are of no real interest to white middle-class journalists and editors? Is it because the media’s relationship with politicians and the institutions they are supposed to hold to account is far too cosy?

But if I had to single out one institution within the Crown that has completely betrayed victims then the clear winner is Crown Law. This institution holds the authority for prosecuting crimes, and yet its actions over decades have contributed to what the Royal Commission labels a “cover-up” of crimes and injustice for survivors.

What could compensation be?

So what should the Lake Alice victims be compensated?  The question matters not just for Lake Alice victims but sets the bar for other victims of state abuse and potentially for future victims, which is what the Crown was worried about all along.

In one case in Australia Bob Cummings, former ward of the state of Victoria, was forced to undergo electric shock “therapy” after disclosing he had been sexually abused in the early 1970s. He reached an $825,000 settlement with the state government and Uniting Church in 2020. A story in The Age newspaper said that Mr Cummings accepted an earlier settlement of $15,000 in 2007 that he considered “insulting” and was prevented from pursuing any further claims.  But a law change allowed him to revisit the settlement.

Victorian Attorney-General Jill Hennessy said, for too long, survivors of institutional child sexual abuse had “been forced to accept measly payments for the horrendous injustices they suffered”.

That statement applies squarely to New Zealand. It’s a pity our Attorney-General didn’t come out and say the same.

Luxon’s statement to the point is already subtly minimising the torture, using words like “some children” and only referring to the use of electric shocks and the painful drug paraldehyde.  But what about children who were not only given electric shocks, but were deliberately put into adult villas where they were raped by criminally insane patients?  (I have documents that corroborates that this happened). Some of the staff doing this were also sexually abusing and raping children, often when they were administering paraldehyde. Others were put into a cage with deranged adult patients as punishment and to frighten other children. This was verified by Justice Gallen in 2002.

Does the Crown now consider this treatment to be torture?  What about solitary confinement of children for months – is that torture? All of these forms of abuse were given as a punishment and therefore meet the definition of torture.  Luxon has no doubt been advised to limit what he says about this.

It should be noted that New Zealand is still in breach of the Convention Against Torture, particularly on Article 14 which is about providing proper redress. The Convention doesn’t define specifics on what redress should look like.

I’m hearing a figure of billions of dollars has been earmarked for redress for state abuse.  If that’s in the ballpark, then it’s a significant figure.  But compared to the calculation that the Royal Commission made of the estimated monetary cost, then it’s a small fraction. 

The Royal Commission estimated the cost: “The average lifetime cost to the survivor of the loss of enjoyment of things that New Zealanders consider are normal day‑to‑day activities is estimated to be approximately $857,000. Based on the estimated number of people abused and neglected in care between 1950 and 2019, the total cost is estimated to be between $96 billion and $217 billion, of which the smallest proportion is paid by the taxpayers of New Zealand, up to $46.7 billion. The largest cost, estimated up to $172 billion, is borne by survivors.”

Like the Treaty of Waitangi settlements, the true cost is absorbed by the victims themselves while the Crown portrays itself as generous and magnanimous. 

But neither the treaty settlements nor redress for victims of state abuse would have occurred at all without the victims and their supporters fighting for decades against a recalcitrant Crown.

But is this another fiscal envelope? Another containment strategy whereby the perpetrator portrays itself as the saviour?

And where is this money coming from?  One adjacent issue that may be related is that ACC’s accounts suddenly have a $7.2 billion deficit since its last annual report.  This was explained as “driven by a significant increase in the Outstanding Claims Liability (OCL). This year, the largest single driver of financial performance is the estimated provision for policy changes following the outcomes of the two Court of Appeal rulings.” One of those rulings was about a sexual abuse case that entitled the victims to compensation for loss of potential earnings due to the trauma.  Given the number of victims of abuse in state and faith-based institutions – up to 200,000 by the Royal Commission’s estimates – ACC’s calculation could be anticipating a surge in claims on this front.

If not money, what?

If the Government can’t afford the true cost, then there’s other aspects that it can address, ie. accountability.  The main reason it has taken over half a century for the country to confront the magnitude of the state’s abuse of children is because there have been numerous high profile Crown ministers, bureaucrats and lawyers who have gone to great lengths to protect the Crown from legal and financial liability.  In the process they have covered up for criminal acts committed against children including torture, rape and grievous bodily harm. A criminal complaint was laid against a number of individuals involved in this cover-up but police have not investigated.

The Royal Commission laid out some clear steps for accountability that takes it out of the hands of Government ministers and puts it in the hands of the courts. Successive governments have been trying to avoid this for years, largely on the advice of Crown Law. If it did get to court, as it did in the White case, the victims were treated atrociously by Crown lawyers and judges.

A couple of recommendations aimed at prevention. 

One of the recommendations the Royal Commission made was that it should be enshrined in legislation that children in care have a right to be free from abuse.

It followed that up with another recommendation that should that right not be upheld, the Crown should be liable. The Labour government ignored these recommendations when it passed oversight legislation for Oranga Tamariki.  Will this government implement these recommendations and thereby expose the Crown to liability if it continues to fail children in its custody?

The Royal Commission also made recommendations that amount to clearing the way for victims to sue the Crown.

In one recommendation it states that: “The courts should prioritise civil proceedings regarding care or abuse and neglect in State or faith‑based care to minimise litigation delays.”

It also recommends that the government should not rely on legal barriers such as limitation defences in civil cases and provide victims with legal representation.

Both the last government and the parties in the current government have had the Royal Commission’s report on redress and Lake Alice for two years and yet have done virtually nothing until recently. 

A cross-party committee could have been formed to get on with at least putting a structure in place so that it was ready to go when the final report dropped.  Now there are constant excuses that it’s all so complex and is going to take time to get it right.  Well, many survivors haven’t got time. 

Stopping present and future abuse

But the evidence that this Government’s apology could end up being hollow is that its current policies will essentially create the conditions, directly and indirectly, for the state’s abuse of children to continue. Last year the Independent Children’s Monitor found that 519 children in the custody of the state had been abused, the majority more than once. There are still no mechanisms in place to hold the Crown liable for this abuse, so it will continue.

Another major problem is that across government departments there is an absolute failure to understand trauma and respond in a way that heals that trauma. Instead we have government institutions habitually inflict more trauma on people who have been through generations of it. 

The Police, the Courts, Corrections, the health system, MSD – there are individuals and whole families who simply know nothing but trauma and violence from these institutions.

The majority of the victims in many state institutions were Māori and the majority of them are now men. How will the Government respond to the trauma these men carry, particularly when many of them are in prisons and gangs? Inflict more trauma?

In his statement when the Royal Commission report was tabled in July, Luxon said: “The apology will provide an important opportunity for the Government, and the leaders of other political parties, to take responsibility on behalf of the nation for the failures of the State across many governments.”

Tomorrow, he might need to take responsibility for those in this, current era of government.