Work in progress 16/9/15
People who were abused in state care are suing the government for $740,000 for what they say is a failure to act when they asked for their personal records… For many of our clients it feels like a secondary type of abuse, where the same organisation that abused them as children is now treating this request for records with a degree of contempt.
In April/May of 2015 the UN Committee Against Torture (UNCAT) called New Zealand to task on the matter of failing to provide adequate redress to New Zealand’s historic abuse claimants with:
“19. While welcoming the commitment of the State Party to provide compensation to victims of historic claims of abuse, the Committee is concerned at the fact that victims have not been awarded with full redress, including compensation and rehabilitation, as prescribed by general comment No. 3 (2012) on the implementation of article 14 by States parties.
… The State party should establish the legislative and structural framework necessary for ensuring that all victims of torture receive redress, including medical and psychological assistance, full compensation and the means for full rehabilitation.”
Shortly after this UN statement was made I sent an email (17/5/15) to the New Zealand Attorney-General, Christopher (Chris) Finlayson highlighting the situation. The email heading read: “UN Committee Against Torture finds New Zealand in Violation of Historic Abuse Claimants Human Rights”. Attached with this email was a PDF document that fully outlined the UN findings.
Prior to this, Finlayson and I had been communicating about his views versus my views regarding the historic abuse claims processes. My view was that the New Zealand State was violating the human rights of claimants, as prescribed by international law, while his view was:
“I have taken a strong interest in the government’s approach to the resolution of claims of abuse of those in state care. Over time, I believe that that approach has struck the difficult but necessary balance between the need to support those coming forward over past abuse and the need to ensure that that support is responsible and equitable…. However the New Zealand government’s approach is properly subject to scrutiny including by the United Nations Committee. Shadow submissions such as yours will undoubtedly contribute to the Committee’s consideration of this difficult issue and its further engagement with the New Zealand government through the periodic review process.” (Correspondence Chris Finlayson 14/4/2014)
Based on this response and the UN findings that followed it became clear that my views – at least from human rights, international law perspective – were correct while Finlayson, a lawyer and self-appointed Queens Council (QC),* having “taken a strong interest in the government’s approach to the resolution of claims of abuse”, believed that the New Zealand State had got it right – meaning that after the UN findings his position became extremely tenuous.
New Zealand Attorney-General, Christopher Finlayson QC both recommended himself for and appointed himself a QC. In 2006, the QC title was renamed Senior Counsel by the NZ Labour party with the final appointments of Queen’s Counsel occurring in 2007, after which the Lawyers and Conveyancers Act came into force. However, in June 2009, Finlayson announced that the title of Queen’s Counsel would be reinstated, and a bill to implement the restoration was introduced into Parliament in March 2010, with new conferences during 2010 and 2011 to the position, first of which was Finlayson. The bill passed committee stage in November 2012, was passed in a third reading and received the Royal Assent on 19 November 2012. The bill now passed into law, Finlayson obtained the silk on 13 December 2012.
For more than a century “taking silk” (being awarded a QC) has been a way of recognising excellence in New Zealand legal advocacy. Of the 279 QCs awarded until 2013, 88 have gone on to become judges. Seven (of a total of nine since 1907) have become Chief Justice and six have become President of the Court of Appeal (of a total of 12 since the permanent Court was established)
Surveys of QCs show they receive higher hourly rates than non QC practicing lawyers. Practice management consultant Ashley Balls of LegalBestPractice says charging rates in the legal profession are related to seniority and that increases are anticipated after becoming a Queen’s Counsel.
A survey by Richard Burcher of legal services pricing consultancy Validatum Ltd in 2011 received responses from around two-thirds of New Zealand’s Queen’s Counsel. This found the most common hourly rate was $550 to $649 (for 23% of respondents). At the top end, 7% of respondents billed over $1,050/hour. Mr Burcher says the respondents were a good representation of all Queen’s Counsel, right across the charging range. By way of comparison, a survey of law firm partners at the same time found the most common hourly rate was $341 to $360 (for 16% of respondents) and only 5% of responding partners billed over $400/hour. Source: the NZ Law Society
Oh, and as for the ‘Queer Catholic’ (QC) thing, Christopher Finlayson QC is both openly gay and a staunch Catholic. He claims there is no conflict here because he doesn’t have a partner and practices abstinence. For the record, there is nothing wrong with being queer (whatever makes your propellers twirl, as long as it is between consenting adults). This said, the Catholic who practices abstinence thing I do find a tad disturbing. Let’s face it, a lot of male Catholics who are claimed to practice abstinence have been very publicly exposed of late for their perverse and criminal behavior of harming children for life.
The Stonewalling Begins
The term stonewall references a literal stone wall, which tends to be a significant obstacle. When someone stonewalls someone, he or she essentially acts as a wall in the conversation, making it impossible for things to proceed. In politics, stonewalling is used to refuse to answer or comment on certain questions about policy and issues, especially if the person posed questions to is under investigation. Stonewalling usually prevents that person from having to lie or give an answer invoking further questions. Lies can be used against a person, especially in a public forum, but an honest answer may incriminate. In Glasser and Hassin’s ‘The Calculus of Stonewalling’ (2001) the authors point out that a politician’s refusal to cooperate through stonewalling can be interpreted as a signal of guilt..
Having defined stonewalling, and coming back to the correspondence I had sent to Chris Finlayson, on the17/5/15, six weeks after sending it I hadn’t received any response. Based on this I sent a follow up email on the 1/7/15 which read (excerpts thereof):
“ Mr. Finlayson, on the 17th May 2015 I sent you correspondence (via email) highlighting the New Zealand State had been found in violation of New Zealand’s historic abuse claimants human rights…
I would note that before sending my latest unanswered communication to your office we have previously communicated about your views v. my views on the State’s handling of the historic abuse claims. On the 12/3/14 I had sent you a draft submission (shadow report) I eventually lodged, as a completed submission, with the UN Committee Against Torture (UNCAT) for NZ’s 6th periodic review (which took place in April 2015).
On the 14/4/2014 you responded to my 12/3/14 communication with:
“I have taken a strong interest in the government’s approach to the resolution of claims of abuse of those in state care. Over time, I believe that that approach has struck the difficult but necessary balance between the need to support those coming forward over past abuse and the need to ensure that that support is responsible and equitable. In response to your request to discuss these concerns, I acknowledge from your draft submission that you do not believe that the response of an apology and compensation in your own case was inadequate, particularly as you are unable to access state-provided assistance while living outside New Zealand. I also understand from your draft submission, however, that the Ministry of Education has corresponded with you and has concluded that it is not possible to provide further assistance. For that reason, I do not consider it appropriate to comment on the remedies provided in your case.”
I would, at this point, direct you back to the information I sent you where it becomes clear that the UNCAT did not agree with your views. That is, they didn’t find the State’s approach to dealing with claims of historical State child abuse as “responsible” and “equitable”. In fact, to the contrary, they called the State to task on the “fact that victims have not been awarded with full redress, including compensation and rehabilitation, as prescribed by general comment No. 3 (2012) on the implementation of article 14 by States parties.”
Could I now ask you, given the outcome at the UNCAT, do you still feel that the New Zealand State has dealt with the historic claims in a “responsible” and “equitable” manner? What is your official position on this as of today?”
Given I, as a historic abuse claimant, and as a peer voice for the claimants, had made a submission to the UN Committee Against Torture for New Zealand’s review before the Committee, a submission that would play a pivotal role in the UNCAT concluding that NZ had failed to provide adequate redress to NZs historic abuse claimants, my case was particularly relevant to any response Finlayson would make. Other than this, as Finlayson and I, prior to the UN findings, had been involved in dialogue surrounding my submission to the UN it seemed that at the very least Finlayson would now make some form of response … an I agree or disagree (or otherwise) at the very least! He had after all previously stated, “the New Zealand government’s approach is properly subject to scrutiny including by the United Nations Committee. Shadow submissions such as yours will undoubtedly contribute to the Committee’s consideration of this difficult issue and its further engagement with the New Zealand government through the periodic review process.”
However, six weeks after sending the second correspondence, as with the previous “UN Committee Against Torture finds New Zealand in Violation of Historic Abuse Claimants Human Rights”. email, it remained unanswered. Therefore, on the 19th August 2015, I sent yet another email:
” Mr Finlayson, I am wondering whether you intend to respond to my questions I posed to you in correspondence about 6 weeks ago now? A simple yes or no to this question will do so that I can await your answers (re yes) or lodge a complaint with the ombudsman (re no).”
Two days later on the 21st August I received this response.
“Dear Mr (edit)
Thank you for your emails. Mr Finlayson has no further comments to add to his initial correspondence.
Office of Hon Christopher Finlayson QC| Parliament Buildings, Wellington”
It was an interesting response; namely that there had been no prior comment surrounding the UN findings – the very thing I had asked for comment about. In other words, a no comment, albeit oddly implying that some comment had already been made… a classic case of political stonewalling with a bit of a slippery twist.
Subsequently, since this case of stonewalling, all correspondence I have sent to publicly elected officials (e.g. MSD Minister Anne Tolley) and/or their representatives (e.g. Garth Young of the MSD historic claims unit) have gone completely unanswered (watch this space). Based on this, what seems apparent is that the John Key National Government now has a uniform approach to answering any questions that I pose to representatives of that Government. In short, I am now being completely stonewalled by any Government official I approach. It is unlikely that this is a coincidence and this uniform approach implies that someone high up in the chain of command has passed the mandate that no Government official is to provide me with any information that can be used to bring transparency to the historic claims.
The NZ John Key National Government Battens Down the Hatches as their Wiley Game Plan Comes Undone
I recently contacted a member of the media about what appears to be a newly established Contemporary Claims process – a process that I am told runs parallel to the historic claims. What information I do have on the Contemporary Claims comes from a claimant who has informed me that the Contemporary Claims process was recently started to cover abuse that occurred in State run institutions post 1992 (1993-2007) – or beyond the years covered by the historic claims (until 1992). The claimant had said:
“I have contacted MSD this morning and been advised they are also running a “claims settlement process” for the period 1993 – 2007 called “Contemporary claims”.
I had a conversation with a social worker there who sounded serious and he will be posting me a formal acknowledgement of my claim.”
What’s notable about the Contemporary Claims is that while a redress scheme has been put in place by the Government to provide victims of abuse with some form of redress, nobody from the State has bothered to notify victims of State abuse that such a scheme exists; i.e. the redress scheme goes completely unadvertised through Government websites and/or any other form of media. To give you some idea of just how quiet the Government has kept things, a Google on the 10/9/15 using the search strings (plural) “MSD Contemporary Claims Process” and “New Zealand Contemporary Claims Process” yielded zero hits.
Based on this lack of transparency I had sent the MSD an email asking them to confirm that a Contemporary Claims process existed and if so I also pointed out that they had completely failed to inform anyone about its’ existence. My questions to them (the MSD) were very simple; 1) was there indeed a contemporary claims process; 2) when was the process started and; 3) why was there no mention of it on the MSD or any other government website in September of 2015?
To this request for further information I received no response. Not a thing!
Having been stonewalled, I contacted the media and informed them about the situation to; 1) have the media ask the MSD the questions they had failed to answer when posed by me and; 2) through media publicize the fact that New Zealanders who were abused in State care between the years of 1993- 2007 now had a means for seeking redress. Let’s face it there is very little point in creating a compensation scheme for potentially hundreds of victims and then not informing the victims that such a scheme exists, but then perhaps that is why, all bullshit aside, there has been no publicity.
What came next surprised me. The journalist got back to me with (to effect); there is nothing about it on their website, are you sure? And (to quote) “I will give them a bell later this week… but like most things it will probably end up having to be an OIA!”
‘OIA’ stands for ‘Official Information Act’ or applying through official channels, covered by an Act, and where information can take weeks to access and dependent on the request, the OIA can be fully granted, partially granted (granted with editing) or denied.
Basically, however, it appears from my contact with a journalist that New Zealand Government officials are now stonewalling the New Zealand media when it comes to speaking about anything historic claims related. This has significant implications to transparency because the Government can pretty much deny the release of any material they find politically embarrassing.
It’s the job of the Office of the Ombudsman to deal with complaints about how the OIA is being used. Beverley Wakem, the Chief Ombudsman, appeared on TV3′s The Nation in the weekend to deal with some of these issues, and declared that the Prime Minister’s attitude to the OIA is “cavalier” and shows “a disregard for the law” – see the NBR’s: Key shows ‘disregard for the law’ over the OIA, Chief Ombudsman says.
The full 12-minute interview can be watched here: Interview: Chief Ombudsman Dame Beverley Wakem. For one of the most extraordinary parts of the interview, see the two-minute item: The Ombudsman on a TV3 producer’s complaint about Police Commissioner.
In this, interviewer Lisa Owen raises allegations that police have also deliberately withheld information from the media investigating crime statistics: “I would like to take some time to just explain an example – one of the most interesting ones I think I’ve seen in recent times – which is a request from a 3D producer, Eugene Bingham, asking for information about serious allegations that South Auckland police were doctoring burglary statistics. Now, the police delayed him for about two years before they responded to him, and then a police job sheet surfaced, and I’ve got the job sheet actually here, and in this, an inspector has written down instructions that he says he received from the then deputy commissioner, who’s Mike Bush, who’s now the top cop. In this job sheet, that person states that he was told to let the request sit, and then he goes on to say that, ‘The direction to me was to not respond to the Official Information Act request.’ Let it sit. Not respond. That’s a really serious allegation, isn’t it?”
A much more critical account can be found on the No Right Turn blogsite – see: The continuing failure of the Ombudsman. According to this analysis, the Office’s failings are being obscured by a change to the way their performance is being recorded, and the public still cannot rely on having a “a well-funded, effective watchdog” to deal with the OIA, despite increases in government funding for the office.
According to analyst Paul Buchanan, “there is a sense that when it comes to the Ombudsman and other oversight agencies, they are more about whitewashing than honest scrutiny” – see: Confronting executive branch excess. He says, “Agencies such as the Ombudsman that are entrusted with overseeing the behaviour of politicians and senior state managers are seemingly subordinate (or at least submissive) to them”.
According to Andrew Little, the weaknesses of the Office of the Ombudsman mean that government “can keep information that is potentially embarrassing to them away from members of the Opposition or journalists or members of the public if they really wanted to do so, and they’re doing that”, and he’s proposing reform – see Radiolive’s Labour proposes Freedom of Information Office.
How does this situation affect the historic abuse claimants? Here’s a post that appeared on my Historic Claims face book page the other day from a claimant who has hit wall after wall in getting hold of official documents pertaining to their time in New Zealand State care.
HI Everyone just a update on my privacy and official information request.
For those who don’t know I was a ward of the state back in the early 80s my first placement was at Hamilton girls home and then subsequently to foster placement in the Coromandel and Hawkes Bay. I made a claim to msd and have received a payout.
I have fought tooth and nail to obtain my files from msd. I originally was told by Garth Young that they were destroyed and they could not be found. But I continued to place pressure on msd via a lawyer and my local mp. He finally agreed that the govt document storage facility RECALL had miraculously found seven files pertaining to me five of which are solely in my name the other two are with another sibling. So I requested the seven files with my siblings name redacted.
I received an email dated the 30 of Oct 2015 stating that the needed to contact me regarding my request. I phoned them and spoke to a Vanessa at P.O.I. she informed me that due to the large number of requests that the we’re back logged. And it would take several months to complete my request and that I would not be forgotten.
I received a email today from yet another Poi official stating that they had closed my request….I’m absolutely dumb founded!
So I phoned again and was put through to the official who closed the request.
I told them I was very upset at that. That I had spoken with a colleague (edit) … he then put me through to her. She apologized to me. And she would get the senior privacy officer to reopen it and back date it to the time of my original request. I asked for her to confirm this via email.
As another example, during my claim in 2011/12 every piece of OIA I requested from the relevant Government department (the accused party) was denied. According to their lawyer , it had all been destroyed . Where it hadn’t been destroyed, my requests for information apparently breached the privacy Act. Of course, given the accused had also denied me legal aid I had no way of contesting this denial of evidence through legal help.
Fortunately for myself, where my case was concerned, the Police Department had not destroyed the records of my abuse. Had, though, my case relied on OIA from the Government department concerned (who coincidentally were also acting as investigator and judge) I would have had no case. Instead the police records were thoroughly condemning. Denial of OIA makes for a great cover up. I’ll give them that. I’d also say that they are morally depraved scum who make the Catholic Church look good.
In fact recently Radio New Zealand reported that “people who were abused in state care are suing the government for $740,000 for what they say is a failure to act when they asked for their personal records…
The group of 74 people needed the documents in order to file compensation claims for the abuse.
But the claimants say the Ministry of Social Development treated them with contempt, taking up to 16 months to hand over the information.
Cooper Legal, representing the claimants, lodged a lawsuit with the Human Rights Review Tribunal in April.
Senior solicitor Amanda Hill said under the Privacy Act personal information used to support a claimant’s case for compensation must be released without “undue delay”. It took from seven to 16 months to get the records, without which the legal team could not proceed with the claims, and some clients died during that time.
Ms Hill said the Privacy Commissioner had already deemed the delays a breach of the rights of her clients, for whom the indefinite wait was distressing.
“They get stuck, basically, in a system where they’ve come to us and talked about their history of abuse, and often had to deal with really traumatic events that they’ve spent a lot of time trying to forget, and then they kind of have to sit and wait in a vortex.
“The delays have created their own sort of stress, and our clients often don’t have good health, so we’ve had clients who have died while they’ve waited for their records.”
Each of the 74 clients was seeking $10,000, to be paid on top of any compensation received for the abuse itself.
“For many of our clients it feels like a secondary type of abuse, where the same organisation that abused them as children is now treating this request for records with a degree of contempt” Ms Hill said.
 Glasser, A. and Hassin, R. (2001) The Calculus of Stonewalling. Journal of Theoretical Politics 13(4):413-424