Aaron Smale: An apology both sincere and hollow

Comment: There were a lot of words said in Parliament at the apology to victims of abuse.  

For me the most powerful words were virtually unintelligible. Gary Williams is severely disabled and in a wheelchair, but that did not limit the power of his words, which were flashed up on a screen behind him. He was the first survivor to speak at the event. He spoke directly to the Government and you could feel the words resonating in thousands of hearts.

“Your words will never be enough for survivors, we’ve had decades of hearing words like that,” he said, in response to an apology from the heads of government agencies.

“There is a long way to go before changes can put it right, and I just want to say we can’t wait until next year because people are dying every day without any kind of restitution.”

Gary’s vulnerability was so clearly evident but he truly did speak for so many. I really felt it when I realised he was from the same hapū as my whānau.

I hope this doesn’t sound patronising but I was so proud of survivors yesterday and they can take pride in the ways they have fought for this day and what follows. Given the chance to be heard, they were something to behold. They always are. But on this, the biggest and most significant stage, they conducted themselves with such immense dignity and their words were so powerful.  Yes, there were moments of intense anger and that was expressed.  But it was absolutely justified.

Speeches from survivors Fete, Keith and Tu brought the house down. They are worth a moment of slow reflective reading.

The apology from not only the Prime Minister but also the Leader of the Opposition needed to address four broad areas – first, the scale and seriousness of the abuse itself; accountability for those who not only perpetrated the abuse but those who covered it up in order to protect the Crown from legal and financial liability; redress for victims; and prevention of it happening again.

Christopher Luxon’s apology was both sincere and hollow. As far as I could tell, the apology was sincere from Christopher Luxon the person. I’m sure he meant it, because anyone reading even a fraction of the Royal Commission’s report or engaging directly with victims would have to lack a pulse to not be affected. 

But the apology from Christopher Luxon the Prime Minister hollowed out that personal sincerity, for reasons I’ll come to.

On the first count of addressing the abuse itself, Prime Minister Christopher Luxon was statesman-like and gave a sensitive, empathetic and fulsome acknowledgement of the reality of what victims had been through. As both a human being and as a political leader he rose to the occasion. 

But then he became Christopher Luxon the Prime Minister of the Crown. While he didn’t deny the reality of the Crown’s cover-up, it was crafted and structured in ways that stepped around it.  There was a constant framing of the abuse as something that was in the past tense. This subtly avoided the ongoing abuse that occurred in the form of denial and revictimisation of those who confronted the Crown demanding accountability. 

While there was a respectful silence from survivors in response to Luxon’s speech, there was notable shift in the atmosphere when Hipkins gave his address. It happened at the point where he admitted that the previous government had dropped the ball in implementing the redress scheme, but also acknowledged that previous Labour governments had covered up and disbelieved victims.

At the end there was a standing ovation in the public gallery, which was a notable contrast to the polite but tepid applause with which Luxon’s statement was met.

It was a much-needed acknowledgement, albeit generally vague, about the role Labour had played. But Hipkins had played the same hand Luxon is currently playing now – he had let the mantle of Hipkins-the-Prime-Minister-of-the-Crown scramble his moral compass.

And both he and Luxon let the anticipation of power scramble their moral compass and willingness to expose the Crown to the accountability during the election. Last year I asked both Hipkins and Luxon – and Jacinda Ardern before that – whether they accepted the finding of the Royal Commission that what happened to children at Lake Alice met the definition of torture.  None of them ever gave me, or the victims, an answer. They wanted both the levers of power but not the responsibility that goes with it.

While this might sound like scoring in a talent quest, the political performance of both leaders highlights a reality that runs right through this whole issue. Namely, it’s far easier to be human when you’re in Opposition without the burden of responsibility that goes with being the actual government. Those in government inevitably bear the burden of governing and all the responsibilities therein, but they also run the risk of catching what you could call the Crown disease.  In its more virulent strains its like a bad virus that you can’t shake off.

This disease afflicts its victims with the notion that they must protect the power and legitimacy of the Crown, especially when it is their party holding that power and legitimacy. It also afflicts its sufferers with the delusion that their decisions, because they are those of the Crown, are always right and are protected by an ironclad impunity.

When you apply this logic to how the Crown has responded to the abuse of children in the custody of the state, it can make some sense of why certain people made the decisions they did.

Everyone who has anything to do with Bill English will tell you he’s a decent bloke (I haven’t dealt with him but I’ll take their word for it). But the Royal Commission has said he had options open to him as Minister of Health in the 1990s that would have led to the prosecution of perpetrators. He did not take those options.

Helen Clark was scathing in her criticism of English while in opposition, even using the word torture on the record. But when she became Prime Minister the language shifted and the out-of-court settlement she ushered through for some victims was not followed by any credible fact-finding inquiry, even though there was clear evidence that serious crimes had been committed against children. The same options open to Bill English were open to Clark and her health minister Annette King. Like English, they failed to take those options. This and multiple other failings on their watch led to the UN eventually finding New Zealand in breach of the Convention Against Torture.

There is something both fascinating and frightening about how the power the Crown wields can lead people to serve the interests of the Crown and carry out actions that now look morally reprehensible and, in some cases, outright criminal. I have lost count of the times I have been gobsmacked when poring over documents to see how serious crimes against children can be abstracted to such a degree that it’s as if the people writing the document are describing the price of bread.

I have had some harsh things to say about Crown Law in the time that I have been covering this, and I won’t resile from those views. But there is also a question to be pondered about what goes into political decisions. The focus is mostly on MPs, but to what extent are their decisions shaped by advice from Crown lawyers and officials to the extent that they’re a foregone conclusion. Or, conversely, to what extent are ministers instructing officials and Crown lawyers to do things that are morally and legally dubious? 

Which brings it back to the question of responsibility and accountability.

Solicitor General Una Jagose made decisions and was involved in legal work that hid for a long time behind the cloak of legal privilege. Its exposure has cast her in a very bad light indeed and I have reported at length on some of the more egregious examples. But she is one person in a network that made those decisions. One of those in that network is Judith Collins. Her denial of torture at the UN does not pass even a technical argument that the abuse at Lake Alice was before New Zealand ratified the Convention Against Torture in 1989. That Convention still puts an obligation on signatories to investigate credible allegations of torture, regardless of when they happened. That is why New Zealand was found in breach and Collins is among those culpable for that breach.

But Collins and Jagose continued where others had left off and those others included Sir Terrence Arnold and Chris Finlayson.

There was a broader decision maintained by successive governments to pursue a strategy to protect the Crown from liability. But that liability existed because children had been tortured, raped, abused and assaulted by agents of the state. The obligations to prosecute criminal offending legally trumps avoiding civil liability. But the Crown avoiding liability was deemed by many of those involved as more important at various times than prosecuting pedophiles and child torturers. 

Luxon standing by Collins and Collins standing by Jagose may not be an endorsement of that strategy but it is implicitly saying that their involvement is not consequential.

The “lessons learned” talking point that Jagose and Collins are repeating like a security blanket doesn’t really stand up. We’re not talking about failing a law school exam that you can re-sit next year. These legal tactical decisions harmed hundreds of thousands of victims of the state’s abuse. It was another form of abuse in and of itself, not simply a slip up in a performance review. The abuse and torture claims that Collins denied and that Jagose worked to defeat legally were abhorrent crimes against children.

And it begs the question – why is this not a sackable offence when Luxon has sacked his Minister of Media for fumbling her lines and not handling the shambles that she inherited from decades of failures. His administration also sacked Health NZ board members for not getting their budgets right. Hardly a crime. 

Luxon retaining Collins and Jagose as the Crown’s lawyers is not just a political matter, although it has now become that. It also has serious implications legally.

I know lawyers who will be filing something with the UN shortly about this conflict of interest.  There is a deadline coming up later this month and these issues will be raised right in time for the UN to take New Zealand to task again. The organisation has been on New Zealand’s back about this for more than a decade and has been unimpressed with the response and lack of progress.  While this is specific to the Lake Alice case, the same criticisms apply to the abuse in other institutions: a lack of prompt redress and accountability. 

The UN itself has criticised the fact New Zealand’s Attorney-General sits in Cabinet while holding the responsibility for enforcing and signing off any prosecutions under the Crimes of Torture Act.  The UN sees this as a structural conflict of interest. This structural flaw is no longer just theoretical. It is now reality. And it is amplified when the Attorney-General has previously appeared at the UN as Minister of Justice and denied torture, despite the UN repeatedly criticising New Zealand for not properly investigating Lake Alice. Before holding that Ministry of Justice portfolio she was Minister of Police and presided over the conclusion to an investigation into Lake Alice that was a debacle. 

I’ve been told Collins will be maintaining New Zealand’s reservation about Article 14 of the Convention, which is about redress. The UN has criticised this position and New Zealand is still in breach of this article.

How many conflicts of interest and past failures do you have to have on your CV before you get stood down? This is particularly so when their role has a direct bearing on redress. The only other minister who has a more direct role and influence over redress is the Minister of Finance and the advice received from Treasury.

Surely it is simply untenable for Judith Collins and Una Jagose to retain their positions as the Crown’s two top lawyers, advising Cabinet on redress when they have so clearly failed. How can anyone be sure Crown Law is still not proffering legal advice that is about protecting the Crown from liability, with Collins and Jagose’s background? Any such advice to Cabinet will again be behind the veil of legal privilege and neither the survivors nor the public will know what that advice is.  Even though it is hidden from view, in the eyes of many survivors that advice will be tainted by any association with Collins and Jagose.

The corporate phrase “at pace” has become a tiresome verbal tic in these Government statements. It’s always talking about what’s about to happen rather than hasn’t been done already, despite ample time and information to act.

Yes, redress is incredibly complex. But the Royal Commission released the redress report and the Lake Alice reports over two years ago and the interim report even earlier.

It speaks to this government’s priorities when it can get through legislation about gangs within 100 days but it can’t make it a priority to provide redress to those same gang members who were victims of the state’s abuse. 

And this was partly the question I asked Luxon when the Royal Commission’s report was tabled that seemed to rattle him – will the government reconsider its policies around gangs when many gang members were victimised by the state when they were children?  

The redress discussion will get caught up in trying to pin down a global figure, but consider the cost of someone who is a victim languishing in prison where their trauma is never addressed and is made worse. 

What was the potential we have missed out on as a country because hundreds of thousands of people never got to reach their full potential because of their trauma. Every government department, and society in general, needs to completely rethink the way we treat people who have experienced trauma. Currently our approach is to inflict more trauma. It’s been our default position for a long time.

The parties that make up the current government had a plethora of information available to them about redress before they were even elected, as did the previous government.

In my view the biggest failure of the previous government is that it failed to implement two recommendations from the Royal Commission’s redress report. The Minister in charge of a bill on oversight of Oranga Tamariki, Carmel Sepuloni, hadn’t even read the redress report when the legislation was drafted. 

Those two recommendations said it should be legislated that children in the custody of the state should be free from abuse (a fairly basic requirement), and if the state failed to uphold this legal obligation it should be legally liable. The current government still hasn’t implemented this recommendation.

I would be prepared to put money on it that Crown Law has advised against these recommendations being put into law, for the simple reason the Crown would almost immediately be legally liable. 

Last year the Independent Children’s Monitor found that 519 children were abused in the custody of the state, most more than once. The fact that a monitoring body reported on this abuse has not made a jot of difference because there are no tangible consequences to act as a deterrent. 

If the Crown was at serious risk of getting kicked in court for abusing children then its behaviour would quickly change. You can have all the monitoring in the world, but until there are consequences for failing to meet standards then there won’t be any change.

I know many reading this will want me to say something about the initial decision to bar me from entering Parliament as a journalist to cover the apology. I found the attention of the whole thing embarrassing. It didn’t make me a victim. It’s my job to tell the story not be the story. There were plenty of real victims and the whole fuss risked overshadowing what was their day. 

But it did show me again that when power is threatened, it will behave in petty and self-defeating ways. The whole backlash from all quarters in support was completely overwhelming personally, but was much appreciated by myself and the leadership of Newsroom.  It was this support that led the Speaker of the House to back down, albeit with caveats that didn’t make any sense.

I found the original decision irritating, exasperating, insulting but also slightly amusing and validating all at the same time. 

And it was a very small example of the very underhanded tactics that I’d seen deployed repeatedly against victims for decades. The advantage I had was a public profile that attracted publicity and a backlash. For most of their lives the victims haven’t had that kind of platform and megaphone to be heard.

But they got a chance to be heard loud and clear when it came to the apologies from various chief executives. Jagose, the Solicitor-General, copped a barrage of flack and, given what the Royal Commission exposed and what I have reported, she deserved it.

Apart from some sanitised appearances at the Royal Commission, Jagose has never had to actually face the people she has harmed. Until yesterday. It was not pleasant for her, but then her legal work has contributed to the years of delay and despair that victims have experienced on top of the trauma that was inflicted on them by the state.

The apology in the House of Representatives yesterday is a turning point. As a country we have yet to fully come to terms with the reality of the abuse and trauma that has been inflicted on hundreds of thousands of our most vulnerable citizens. It is not only up to the Crown to fix this. The Crown’s response will go where public sentiment takes it. 

Personally, the support I received from all quarters was not about me. Rather it told me something important about how there’s been a shift in the public’s awareness of and attitude towards victims of the state’s abuse and also those victims of abuse in faith-based institutions. 

I hope that shift leads to healing and validation for victims and their whānau.  We owe it to them as a country that likes to think of itself as standing up for what’s right. 

Now’s our chance to live up to the myths we tell ourselves.