Open Letter to Paula Bennett and the New Zealand Parliament
I recently drafted this letter after finishing a semester (4 Units) of studying my Masters in Human Rights. Copies of it have so far been sent to several people or organisations including the Hon Paula Bennett, the NZ Human Rights Commission, Amnesty International NZ and people/stakeholders who have been involved in the claims process (e.g. Judge Carolyn Henwood of the Confidential Listening and Assistance Service). In summary, to date, the NZ State has:
- Refused to launch a public inquiry into what happened in its institutions
- Rigorously denied systemic abuse while also denying claimants an impartial and independent investigation to establish where systemic abuse occurred
- Failed to provide claimants with an independent and impartial investigation of their cases, which breaches Article 13 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which states, “Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined.”
- Entered a reservation to article 14 of the Convention Against Torture as a self protectionary measure which acts to deny claimants of adequate compensation and redress for abuse they suffered while in the care of that same State
- Failed to provide prompt investigation of claims against the State
- Rigorously invoked a statute of limitations defenses barring claimants from seeking redress through the NZ courts for crimes that occurred more than six years preceding a complaint
- Denied many claimants legal aid or retracted legal aid wherever possible which has left claimants without fair legal representation. This violates the rights of claimants where “Legal aid is both a right in itself and an essential precondition for the exercise and enjoyment of a number of human rights, including the rights to a fair trial and to an effective remedy.” (UN Special Rapporteur Gabriela Knaul, UN Human Rights Council)
- Failed to publically acknowledge past violations of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- Failed to make a meaningful, unreserved apology to claimants (whether publically or privately)
I am awaiting a response from the Hon Paula Bennett to the questions raised in the letter. Additionally, a copy of the letter, along with a request for a formal response from the NZ Labour party as to their position, has been sent to the Labour Spokesperson for Social Development and Children, Jacinda Arden.
Footnote: A response from Paula Bennett’s Office was never forthcoming. In short Ms Bennett handballed the open letter to Brendan Boyle, Chief Executive Officer of the MSD, who handballed responsibility to the Ministry of Education. Later I sent the MSD a copy of a submission I have sent to the United Nations Committee Against Torture (UNCAT) and invited response. Their response was:
“Thank you for the copy of your submission. The Ministry doesn’t propose to make any comments at this time.” (Signed by Garth Young, 10/2/14)
No worries guys, we will then eagerly await the New Zealand Government’s response to the UN….
The Open letter reads…
Dear Ms Bennett and members of the New Zealand Parliament:
I am writing this letter in order that the claimants in New Zealand’s historic abuse cases have a voice. That is, while there has been much grandstanding on the part of the government into settling historic abuse claims through the so-called independent Ministry of Social Development CCRT process – a process which by definition is anything but independent – what seems profoundly lacking is any input and/or feed back from those who were sexually, physically and psychologically abused while in the care of New Zealand State. The silence, in fact, has been deafening and might I suggest that in the interests of an open and accountable government there is an independent (i.e. non-government) follow up to ascertain just what claimants think about their treatment by the State. My feedback is relatively simple and can be summed up with, “contemptible”, “cynical”, “non-accountable”, “patronising”, “insulting”, and “retraumatising”. Among other things, I was denied legal aid on the most dubious of grounds by the same government that has positioned itself as defence, investigator and judge, denied OIA material, or told that it didn’t exist, and was fed misleading information that led me to making decisions I otherwise wouldn’t have made. The latter, of course, would not have occurred if I had had fair legal representation.
Additionally, I would note that the New Zealand Government has denied historic abuse claimants a fundamental human right in failing to ensure impartiality of justice, which is a pillar of any democratic society that is respectful of rule of law and the effective protection of human rights. Notably, all general universal and regional human rights instruments guarantee the right to a fair hearing in civil and criminal proceedings before an independent and impartial court or tribunal. Just some of the Conventions and Treaties that cover this right are the Convention Against Torture (art 13), the International Convention on Social and Political Rights (art 14.1), The Universal Declaration of Human Rights (art 10), and the New Zealand Bill of Rights Act (arts 25,27). What’s more offensive is that we are told that the New Zealand Government is fulfilling its ‘moral obligation’ – by definition, “conforming to standards of what is right or just behavior”, missing the point completely that the same government has breached its responsibilities according to International Law. So another position may be, New Zealand’s approach to solving the historic abuse claims has been morally reprehensible where people who had their human rights violated by the NZ State as children are now deprived of their human rights by that same State again.
To date, the Government has: contested almost all claims vigorously; relied heavily on technical defences such as Limitation Act time limits; denied the existence of any systemic problem or culture of abuse; refused to conduct an official inquiry into the abuse of children in State care… There has been no prompt and impartial examination of our clients’ cases, which is in breach of Article 13… “
Let’s, for instance, look quickly at the position the NZ State has taken in the historic abuse claims and compare this to their obligations under an international law.
Firstly, where accountability is concerned, the New Zealand State has rigorously denied systemic abuse while also denying claimants an impartial and independent investigation to establish where systemic abuse occurred. As Sonja Cooper Legal notes in a 2009 analysis of the New Zealand Government’s response to the United Nations Committee Against Torture’s request for further information on Recommendation 11:
“There is no doubt that the paper “Institutional Perpetrators of Abuse”, completed by Cooper Legal in 2006 (when the client base was significantly smaller than it is now) reveals systemic abuse… if this were the case, this would place New Zealand In a different position from all other Commonwealth countries. This cannot be the case. What this does do is highlight the inherent difficulties in the State investigating itself.”
I’d also note that the NZ Government similarly denied systemic abuse in the Lake Alice cases where it was claimed in its response to the 2009 UN Committee Against Torture, Recommendation 11:
“At a systemic level, allegations of ill-treatment in a given institution are thoroughly investigated. All affected agencies have commissioned research, as well as looking at individual claims, in order to satisfy themselves that there is no evidence of systemic failure as there was with the Lake Alice psychiatric hospital claims.”
However, the NZ Government then had this to say:
“The Lake Alice claimants’ allegations were factually clearly established. In the current claims, the factual allegations are generally contested. Second, the Lake Alice claimants’ allegations were substantially the same in that they related to treatment conditions in the Child and Adolescent ward at Lake Alice, during the period 1972-1977 under the care of one particular doctor.”
Clearly then this is an admission of systemic abuse by a government denying systemic abuse.
Further, I’d note that the NZ Government has set up the Confidential Listening and Assistance Service (CLAS) where again the government can be seen to be investigating itself. Notably, this service listens to the stories of those who were abused in state care but then this information is withheld from the public domain. As Judge Carolyn Henwood, the woman who heads CLAS, has stated, “no government has called for a public inquiry. One part of there not being an inquiry is that the public don’t know about any of this”… findings are “kept under the radar”. This of course serves to obfuscate the facts in favour of upholding the official position that abuse was not systemic. Or, as Ken Clearwater from the Male Survivors of Sexual Abuse Trust put it, the CLAS process has helped the government keep “the lid of a whole can of worms” (And) the service is an attempt to buy off” people…who wanted a public inquiry and an apology.” Either way, from a human rights perspective, the CLAS process violates the rights of those abused in State care through denying them an independent and impartial investigation.
I’d also note that based on a story that aired on One News on June 2, 2013, so far the government has paid out 4.6 million to 237 historic abuse claimants which equates to just a fraction over $19,000 for each claim. The same story, however, raised the fact that the National Government was unwilling to disclose what they have apologised or paid up for. I mean, the obvious question here is “what are you hiding?” I for one am more than happy for you to disclose the details of my case to press. As such, I would call on the New Zealand National Government to table all of the facts and figures in the public interest (names of claimants deleted of course). It just seems to me that, if indeed, as your government claims no systemic abuse occurred give the media and others who have requested the information the names of the institutions and the years in which the abuse took place. That is, let impartial and independent entities outside of your own government determine what they think based on the facts.
Secondly, pertaining to human rights violations, and arguably in line with the denial of systemic abuse, the New Zealand State claims that it can’t be held accountable for the criminal actions of former staff. This, of course, is true if we deny international human rights norms where the State will be responsible for acts and omissions of its officials and others acting in an official capacity. The State will also be responsible where it failed to take effective legal and practical measures to prevent ill-treatment (including through failing to adequately deter ill-treatment through the operation of the law), failed to exercise due diligence to prevent and protect individuals from ill-treatment,and failed to adequately and effectively investigate where reasonable grounds exist. It will also be responsible where it knew or ought to have known of an immediate risk of ill-treatment anywhere (whether at home, in a State or private institution or elsewhere) and failed to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm.”
I’d note in my case, Ms Bennett, there are police records from 1978 that contain,1) a letter by the head of the institution explaining to police why he failed to report a suspected paedophile after he had been reported for kissing a student at the institution, 2) a statement by myself to police outlining my sexual abuse, 3) pornographic photos of several children including myself (blacked out), and 4) clear evidence through my statement that this paedophile also molested my brother as a direct result of the failure on the part of the institution to report a suspected paedophile to police after allegations of criminal conduct had been made. Further, I would note that after my abuse was made apparent to this institution over thirty years ago, no formal contact was made by any official of the New Zealand State to offer support or apology after the fact. Thus, Ms Bennett, any claims of no legal liability are dubious at best and these now need to be tested in the International Courts. Further, any claims that problems weren’t systemic is obfuscation at its worst.
Which brings me to the next point. What concerns me greatly is that the NZ State has ordained itself investigator, judge, prosecutor and defense while maintaining that abuse was not systemic. This presents a very obvious conflict of interest to the right to due process which includes, among others things, as previously noted, the right to an independent and impartial investigation. Further, it could be argued that the NZ State has already attempted to suppress information surrounding the historic abuse claims. For instance, the institution I was abused at in 1978 was closed in late 2009 with then Education Minister Anne Tolley stating the closure was “in the interests of the students”. However, what Ms Tolley neglected to mention was that the institution was also the centre of a major police investigation – an investigation that would lead to the arrests and convictions of several former staff for sexual abuse and other crimes. It wouldn’t be until August 2010 after the lifting of a State orchestrated media gag order, as a result of the conviction of Graeme McCardle, on 15 of 24 counts, that the Minister would state that she “was aware of multiple police investigations into staff at the school and did not believe staff had maintained their duty of care to students.”Interestingly though the NZ State had sought to suppress information by way of media gag orders. This same State today claims to be conducting an independent and impartial investigation of itself. This said, one argument here is that the reason the State sought to suppress the name of the institution and the names of the accused was to ensure that more former students wouldn’t come forward to lodge complaints with police. This, to me, is tantamount to perverting the course of justice. I.e. more onetime students who had been sexually and/or physically abused may have come forward with further allegations, lending weight to cases, had the accused and the school’s names been made public in press. For instance, as a police source later confided, “… they (police) believe there are many more victims out there, and probably several more offenders who may never come to justice.” Of course, given this, another perspective on the motivations behind State orchestrated media blackouts surrounding institutionalised historic abuse cases may be that the State is looking to mitigate damages in compensation payouts to victims of abuse. This, in itself, is a form of systemic abuse. As such, I’d call on the government, once again, to present the facts (names of the institutions, the years in which the abuse occurred and details of what the government has apologised or paid up for) to impartial entities (media etc) to ensure due process. If there is nothing to hide, my request to table the facts should not present a problem.
Lastly, we are told that the New Zealand State is doing what it can to put things right, missing the point completely that it has taken years for that same State to do what it considers putting things right – albeit that what they consider putting things right is denying independent and impartial justice to historic abuse claimants where as Cooper Legal has pointed out, your so-called independent process is a case of the Ministry investigating its own…“It can’t be either impartial or independent when it is within the department.” Further, among other things, the New Zealand State has denied or retracted legal aid wherever possible, stalled cases, often for years, refused OIA or claimed it doesn’t exist, allegedly engaged in cover ups, entered a reservation to article 14 of the Convention Against Torture which states, “The Government of New Zealand reserves the right to award compensation to torture victims referred to in article 14 of the Convention Against Torture only at the discretion of the Attorney-General of New Zealand”, and invoked a statute of limitations (the Limitation Act 1950) barring claimants from seeking redress through the courts for crimes that occurred more than six years preceding a complaint and which as the ex Chief Human Rights Commissioner, Ms Noonan, rightfully points out: “The Crown is not obliged to invoke… It has chosen to do so.” So notably, your government, having closed off all legal channels through the NZ Courts, now claims it has a moral responsibility, but only after contesting a case through the NZ Courts which cost that government (i.e. taxpayer) somewhere in the region of $740,000 to defend and in which the judge acknowledged that the claimants (two brothers) had undoubtedly undergone regrettable suffering during their childhood and adolescence: however, the Court held that the Limitation Act operated to stop them obtaining compensation. Additionally, putting things right came about largely as a result of your government being called to task by the UN – a report to the 2009 UN Committee Against Torture, by Cooper Legal, highlighting:
“The refusal of the Government to consider an out-of-court process in these cases, has left the claimants with the only option available, namely litigation…
To date, the Government has: contested almost all claims vigorously; relied heavily on technical defences such as Limitation Act time limits; denied the existence of any systemic problem or culture of abuse; refused to conduct an official inquiry into the abuse of children in State care or patients in psychiatric hospital care… There has been no prompt and impartial examination of our clients’ cases, which is in breach of Article 13… As noted in the Report, New Zealand has entered the following reservation to Article 14, in relation to the State’s obligation to fairly and adequately compensate victims of torture: “The Government of New Zealand reserves the right to award compensation to torture victims referred to in article 14 of the Convention only at the discretion of the Attorney-General of New Zealand… From the perspective of the legal representative for hundreds of torture victims, it is clear that the Attorney-General is taking full advantage of this reservation. In the very small number of cases where compensation has been offered as settlement, the amount offered has certainly not been “fair and adequate”, nor has it provided for “as full rehabilitation as possible”… The reason for the often insulting amounts of compensation offered is that the Attorney-General is relying on the technical defences, such as Limitation Act time limits and ACC legislation…”
And so on..
Anyway, to quote Ms Paula Bennett:
“It’s important we listen to those who experienced past abuse as children in state care, that we apologise and do what we can to put things right.”
Ms Bennett it could be argued that your Governments handling of the historic abuse claims is a cynical cost cutting exercise aimed at minimising political fallout and international condemnation. For instance, in a statement you made on the 20th of May 2012 on the NZ Government website you note:
“The Government has committed $16 million over the next four years to continue the Ministry’s successful Historic Claims Resolution Process for those abused in care… “The funding announced today will allow us to continue to help the 760 people with outstanding claims and those who have not yet come forward. In addition, the Confidential Listening and Assistance Service has provided support services to more than 700 people as a part of the historic claims process. Close to $1.9 million over two years will enable MSD to help fund the Service.”
This said, the Australian Government has spent a million dollars a week since announcing the Australian Royal Commission into Institutionalised Child Abuse, and announced in April of 2013 that it would provide 44 million AUD (52 million NZD) over four years for counseling of those who are testifying at the Commission and, as such, have to relive traumatic childhood experiences. Further, they are providing free legal help to all of those testifying at the Commission. This brings the known cost to $66 million (78 million NZD) before the Royal Commission has taken any formal evidence. Of course, it could be argued that your government’s approach, being extremely different from that of Australia, is better but then this could only be done from a cost cutting perspective that fails to account for the fact that it has taken private funding from Sir Owen Glenn to the tune of 80 million dollars to address New Zealand’s horrendous child abuse problem at an inquiry level – an inquiry that your government has steadfastly refused to hold in conflict to International Best Practice standards. This said, there are some very obvious differences between the Australian and New Zealand approach to institutionalised child abuse. Just a couple of these differences being, in the Australian case, the appropriate ongoing support and legal assistance for survivors of abuse versus, in New Zealand’s case, no ongoing support and no legal assistance for many. I’d point out here that therapeutic support and counseling is the most important aspect of recovery for adult survivors of child abuse. As such, may I ask at this point how much your government has put aside for counseling with regards to putting things right for historic abuse claimants? Additionally, would you also table just how the 16 million will be spent? That is, does it also cover paying bureaucrats and other costs involved in the MSD CCRT process, or is the entire amount set aside for reparations to claimants?
Further, a 2012 CCHR/OHCR Report notes that a $132 million liability fund was set aside in the NZ Government to deal with the Lake Alice cases, of which the NZ Government settled outside of court, without trial or hearing or precedents or legal liability of ill-treatment or torture for $6.5 million in 95 cases. Additionally, over another 100 ex Lake Alice patients came forward and lodged claims with total payouts to 200 people being 12 million dollars, with each complainant receiving between $30,000 and $100,000. Notably these cases were settled in 2001. Factoring in inflation since then, based on the NZ Reserve Bank’s CPI index this means the equivalent today would be $40, 619.42 to $135, 398 NZD, These cases, of course, preceding the historic abuse cases and being just part of a litany of institutionalised human rights violations committed against children in the care of the New Zealand State.
So, coming back to your 16 million for 740 plus historic abuse cases (let’s conservatively say 900 cases) this figure seems extremely low when compared to the Lake Alice situation – particularly when factoring in inflation since 2001 and/or earlier when the compensation payments were made. More worryingly, the amount of 16 million dollars seems extremely low when considering your international obligations to the Convention Against Torture to provide “fair and adequate” compensation for “as full rehabilitation as possible”. I’d note at this point that I received the highest end of the scale payout of $ 30,000 NZD which is the lowest end of compensation payments made to Lake Alice claimants in 2001. As such, one can only conclude that by “successful Historic Claims Resolution Process” you mean successful for your Government. For instance, Rose Northcott (2012) writes in, ‘Doing the Right Thing – Resolving Historical Claims of Child Abuse’, that the MSD CCRT process has “potentially saved the government decades in court and tens of millions of dollars in costs.” The paper goes onto say, “while at the same time helped rebuild the lives of hundreds of the country’s most vulnerable citizens and restore their trust in the state.” It’s certainly an interesting spin given that not a single historic abuse claimant was asked by Ms Northcott what they thought about their treatment by the MSD. For instance, as you may well have gathered this particular claimant certainly has not had their trust restored in the NZ State. Further, the claim that the tokenistic amounts being paid out in restitution will help “rebuild the lives of hundreds of the country’s most vulnerable citizens” is political grandstanding, to say the least.
That is, let’s face it (buzzwords aside), with payouts ranging somewhere between $5000 at the low end of the scale and $30,000 at the highest end of the scale how exactly does this help to rebuild a shattered life in a country where the national median house price in 2012 was $372,000 ($500,000 in Auckland), and where the minimum wage is $13.75 per hour, or $550.00 per week, which translates to $28,600 a year? That is, can a year’s minimum wage, or far less, restore the opportunities that historic abuse claimants were deprived of as a result of their abuse, and does it adequately offer redress? The obvious answer to this is no! Not even close!
Notably, the UN Committee Against Torture in their General comment No. 3 (2012) defined adequate redress as:
“The Committee considers that the term “redress” in article 14 encompasses the concepts of “effective remedy” and “reparation”. The comprehensive reparative concept therefore entails restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition and refers to the full scope of measures required to redress violations under the Convention.”
Further, compensation is defined as, the amount of money awarded to an individual victim should be ‘prompt, fair and adequate’, proportionate to the harm suffered, and should cover ‘any economically assessable damage resulting from torture or ill-treatment, whether pecuniary or non-pecuniary’ compensation should therefore cover past and future medical treatment and rehabilitative services needed, costs incurred to file a claim for reparation (and not only a claim for compensation), pecuniary and non-pecuniary damage suffered, including loss of earnings and opportunities. Therefore, compensation can, in part, cover rehabilitation services, which the State can also directly provide to the victim.
As such, with regards to the tokenistic pay outs to historic abuse claimants, certainly the compensation being offered does not reflect adequate redress for past and future medical treatment and rehabilitative services needed, costs incurred to file a claim for reparation (and not only a claim for compensation), and pecuniary and non-pecuniary damage suffered, including loss of earnings and opportunities. For instance, in my case, where I received the highest end of the scale payout, adequate pecuniary damages were considered to be less than $1000.00 NZD per year since the abuse occurred. Further, there was no offer to cover counseling costs etc. In fact, when I did ask the Ministry if it was willing to cover the costs of counseling, this is the answer that I received:
“The basis of this payment was not because the Ministry was legally obliged to offer compensation, but rather on moral grounds acknowledging that you suffered harm as a result of this experience and in order to assist you to move forward.
The Ministry does not hold itself responsible for the unauthorised criminal actions of a former school staff member. The Ministry does not have unlimited funds and has made you a fair and reasonable payment that is consistent with payments made in similar cases.
The Ministry can provide no further assistance and therefore will no longer engage in any further discussions in relation to this matter.” ….Katrina Kasey, Deputy Secretary, Regional Operations (November 2012)
The obvious question being, if the Ministry is not legally obliged, why then the UN Committee Against Torture etc, etc. Suffice to say, what Ms Kasey likely meant was that due to NZ invoking self-protectionary measures including the Limitation Act 1950, breaching Article 13 and entering a reservation to Article 14 of the Convention Against Torture, NZ has positioned itself outside of human rights norms.
The basis of this payment was not because the Ministry was legally obliged to offer compensation, but rather on moral grounds acknowledging that you suffered harm as a result of this experience and in order to assist you to move forward.
Coming back to counseling, Garth Young from the MSD CCRT is quoted by Rose Northcott (2012) with: “Resolution can also include being connected with support services such as counseling”. This statement strongly implies that only some of New Zealand’s most vulnerable citizens have been afforded with counseling while others have not. This said, what is also worth highlighting is that historic abuse survivors need to go through the ACC Sensitive Claims Unit to get counseling. However, upon even vague inspection the ACC’s Sensitive Claims Unit is anything but “Sensitive”. For instance, in 2007 nearly 6000 claims were lodged. Some 3991 were accepted and 1928 were declined. By 2012 only 49 claims were accepted. Ten percent of claims were accepted in 2010; 4 percent in 2011; and 4 percent in 2012. Further, your government made widely condemned cutbacks to the maximum amount of counseling sessions available to historic abuse survivors from 30 to 16 in 2009. Notably, 16 sessions (or for that matter 30 sessions) is not nearly enough. As an Australian private trauma specialist put it to me:
“Given your history, it is likely that you would need extensive and ongoing treatment and support beyond the rebate systems available to you.”
As such, having worked out costs with rebates, private counseling would cost me $6400 AUD or roughly $8000 NZD a year at 45 sessions per year. Additionally, I have been informed that I would likely need several years of counseling.
Ms Bennett, I’d call on you to table the facts as to how many of the historic abuse claimants have received counseling versus how many have not (count me as one of the have not’s). .
The reason I ask this is because at the very least, from an International legal perspective, besides compensation that is proportionate to the harm suffered (and should cover ‘any economically assessable damage resulting from torture or ill-treatment) the NZ Sate has the absolute minimum obligation to ensure adequate redress that includes past and future medical treatment and rehabilitative services to those who were abused while in the care of that same State. Failure to provide this minimum redress contravenes the human rights of historic abuse claimants.
I’d note at this point (just to counter any claims that $30,000 or less offers adequate compensation and redress) that in July of 2013, a NZ woman was awarded $75,000 by the High Court for exemplary damages for historical abuse. The woman had sought compensation of $275,000 but the judge in this case (Justice Chisholm) said given exemplary damages were designed to punish, not compensate, the amount should be lowered. Thus, seemingly, putting aside redress, compensation in the legal sense is far higher than compensation in the moral sense. And yet you would have us believe that your government is doing its best to put things right. This can only be true if we put aside legalities.
What is it exactly that makes the life of a New Zealander worth so much less than that of an Irish person?
Additionally, In Ireland, a Redress Board set up following a nine-year inquiry into Catholic Church abuse received more than 16,000 claims. In Ireland, the average award was $82,190 AUD ($95,312 NZD). The largest award was $392,704 ($455,370). What is it exactly that makes the life of a New Zealander worth so much less than that of an Irish person?
Okay, so coming back to: “It’s important we listen to those who experienced past abuse as children in state care, that we apologise and do what we can to put things right.”
Ms Bennett, having covered putting things right, one thing I would point out is that an apology has to unreserved for it to be sincere. For instance, my apology read:
“I deeply regret that you were subjected to these experiences and that you did not receive the care and support required to be provided at the school… I sincerely hope … this apology and the offer of an ex-gratia payment will assist you to put this part of your life behind you. Please note however that this payment and apology is offered on a “without prejudice” basis. It should not be taken to indicate that the Ministry accepts legal liability for this matter.” (Lesley Longstone, Secretary of Education)
In other words, we deeply regret with a proviso.
In addition, the letter of apology (with legal disclaimer) had been provided to Ms Lesley Longstone, then Secretary of Education, to sign by Murray Witheford, a so-called Independent Investigator (albeit an ex Ministry of Education employee) with a report that stated among other things:
“It is recommended that an ex gratia payment be made. The advice acknowledges the appropriateness of an ex gratia payment to respond to circumstances that give rise to a moral obligation rather than a legal liability…
Accordingly I recommend that: the secretary… B) sign the attached letter of apology to Mr Edited.”
As such, a government representative simply signed a prewritten statement and this was sent to me. I’m sorry but this is not a genuine apology from the New Zealand Government. That is, to any fool, this apology is empty rhetoric – an insult to add injury – that carries little weight when dished out over thirty years too late with a legal disclaimer.
Ms Bennett, the Scottish Human Rights Commission defines what constitutes a meaningful apology to historic abuse survivors with:
“International best practice, suggests a number of elements to a successful apology:
- an acknowledgement of the wrong done;
- accepting responsibility for the offence and the harm done;
- a clear explanation as to why the offence happened;
- expressing sincere regret;
- an assurance that the offence will not be repeated;
- actual and real reparations (or redress).”
You’ll note this approach is very different to the apology that I and I expect many others have received. Notably, “an assurance that the offence will not be repeated” was the area that very much concerned me. That is, as I have demonstrated, those whose rights were violated by the NZ State as children are now having their rights violated by that same State again.
Ms Bennett, to conclude, based on the actions of the NZ State (rhetoric aside), your government does not appear sorry, nor does it seem to be doing its best to put things right. For instance, it could be argued that the historic abuse claimants – “most” of whom, as Cooper Legal notes in a “Complaint regarding the Legal Services Regulations 2011”, suffer from mental health issues, are homeless or itinerant, and/or have alcohol and/or substance abuse issues – make all too easy targets. Further, it could be argued that your government, to date, is engaging in a cynical cover up, while paying lip service to doing the right thing. As such, Ms Bennett, I would prefer that the New Zealand State respect its international legal obligations because having had dealings with that State, both past and present, I have serious concerns about its morality.