The Road to a Public Inquiry

Article placed online 22/3/17

As I write this in March 2017 pressure is mounting with widespread calls by community leaders, politicians and human rights groups for the New Zealand National Government to hold a public inquiry into historic State institutional child abuse.  Additionally, calls for an unreserved public apology are being made.

Momentum Grows

Recently the New Zealand Human Rights Commission (NZHRC) made calls for a public inquiry, leading an open letter to the Government (found here), published in the New Zealand Herald on Feb 13, 2017, calling for a comprehensive inquiry and public apology to those who were abused in State care.

Twenty-nine prominent New Zealanders have signed the letter which underpins the “Never Again” petition to the Government.

Labour’s justice spokeswoman, Jacinda Ardern, urged the Government to heed the “growing chorus of leading opinion” calling for an apology and an independent inquiry.

The New Zealand Greens expressed support for a full public inquiry and apology on February 13th leading out with this statement:

“The Green Party backs today’s open letter from the Human Rights Commission and others calling for a government inquiry into the abuse of children in state care, and for a formal apology to be made to the victims”  (read here) 

New Zealand First has expressed its’ support for a public inquiry. Its’ head, Winston Peter’s, going on the record with: “You’ve got people who were seriously damaged by the circumstances of their treatment, the wrongness of their treatment, and i don’t think a country should wipe its hands of those things, as painful as it might be and as embarrassing as it might be. We owe to the victims to give them an inquiry and put the matter to rest as much as we can.” (read here) 

United Future leader, Peter Dunne, has expressed his support for an inquiry saying it would reassure abuse victims that they are not being ignored.

The Maori Party has backed calls by the Human Rights Commission and iwi leaders for a full inquiry into what happened to many of the 100,000 New Zealanders taken from their families between the 1950s and the 1990s.

 “I’ve heard the stories from people themselves, who as children were taken from homes that were actually more loving than the ones the State put them in. They are New Zealand’s lost generations,”

“We absolutely support the commission’s call for those who haven’t been able to share their stories, to do so. This Government needs to listen to them and learn from them so that abuse never happens again. E Kore Anō” said Māori Party co-leader Marama Fox.

Māori Party’s Te Ururoa Flavell said the country’s lost generations was more serious than what most people thought. “We’re potentially talking about thousands of children being taken from their families simply for having a disability, being Māori or minor transgressions like skipping school, only to be abused physically, sexually and emotionally by the strangers and institutions that the State placed them with.” (read here)

ACT leader David Seymour was initially opposed to a public inquiry, but changed his mind after seeing “the scale of the abuse”.

“Just getting more informed about what happened, the scale of the abuse, the number of people taken into custody… I think this is a question of public policy. It’s a question of justice. It’s a question of the government not being above the law.”

Mr Seymour said it could be hard to change one’s opinion as a politician, but, in this case, it’s “the right thing to do”.

“We know that government is incompetent from time to time,” he said. “In this case, it appears to have been malicious and people deserve to know the extent of that.” “There should be a full investigation into what happened”, he said. (read here) 

The Head of the National Government’s “Below the Radar” Inquiry – the Confidential Listening and Assistance Service – does a 180 and Calls for a Public Inquiry 

The woman who headed the Confidential Listening and Assistance Service (CLAS), Judge Carolyn Henwood, recently did a 180 and stated that a public inquiry needs to be held.

“I didn’t originally recommend a public inquiry because at the time I didn’t think we needed one.

Now I do.

Although we’ve listened to victims, there’s been no investigation of the Ministry, and no staff has been spoken to.”

“What is the motivation for not having an inquiry? I suspect the Government’s worried it might have a moral and financial liability. Instead it wants this finished”, she said. 

The Confidential Listening and Assistance Service (CLAS) spoke to over 1100 New Zealanders who were abused in State care. The service travelled the length and breadth of New Zealand and also went to Australia to speak to survivors. The problem is that the service was confidential – held behind closed doors – and its panel members were strictly forbidden from making public or ministerial comment. This served to make the CLAS perhaps the most appropriately named inquiry ever. That is, it was so “confidential” the average New Zealander knows nothing about it.

“Our findings were embargoed for 15 months”, Ms Henwood said.  “The Government didn’t want New Zealanders to know”, she said.

Ms Henwood had made seven recommendations, including that an independent body be set up to discover the extent of the abuse, to monitor the ministry’s care of children and to investigate complaints.

“These recommendations have been swept aside and ignored by the National Government” she said. 

Legal Action on Behalf of Disproportionately Affected Maori Launched at Waitangi Tribunal 

A claim calling for an independent inquiry into state welfare abuse that disproportionately affected Māori has been lodged with the Waitangi Tribunal.

It has been filed on behalf of three claimants by Auckland firm Te Mata Law, assisted by Auckland University law school lecturer Andrew Erueti.

Mr Erueti said the claim asked for an independent inquiry to find out why so many Maori children were put in welfare homes where they suffered abuse.

He wants the claim heard under urgency because the current government response is inadequate, he says, and many victims are now elderly.

The claim is the Crown had failed to provide Māori with an independent means to address abuse of children in state institutions.

It says there is an incomplete understanding of the policies and practices that led to the majority of children in state institutions being Māori, the abuse they suffered, and how it has affected successive generations.

“Looking at the evidence that’s been pulled together by scholars who have looked at this closely over the years, academics in the universities and the historians, it seems quite clear that while there was not [an] express policy that Maori be picked up and taken into state care, they were singled out for special treatment,”

“Greater attention was directed at Māori families and their children” Mr Erueti said. 

Race Relations Commissioner Dame Susan Devoy believes children were more likely to be taken off their families and put into state homes if they were Māori.

Dame Susan said by the 1970s, almost half the children in state care were Māori, and a generation later more than half the prison population was Māori, many of them former wards of the state.

In 1978, 89 per cent of admissions to Hokio were Maori and Pasifika. In 1985, Maori boys made up 78 per cent of all youngsters held in six Social Welfare homes across Auckland. Boys sought the protection of gang affiliations while in care, many of these onetime children claim the gangs themselves began in boys homes.

Recently the Ministry of Social Development tracked the lives of more than 58,000 people born in 1989 in a retrospective study. Of those who were in prison by the time they were 20, 83 per cent had a previous “Child, Youth and Family” record. (read here) 

The Maori Party has echoed Dame Susan’s concerns, saying it was “obvious” Maori children were historically more likely to be put in state care.

Co-leader Marama Fox said many children were taken off Maori families simply because they were large.

Public health nurses offered to take the children for a short time to give the parents a rest, she said.

Ms Fox said an inquiry was essential to “ensure that we don’t repeat the mistakes of the past”.

“You can candy-coat it any way you like, but if the figures are disproportionately bent towards Maori, the only plausible answer is that there was some form of inherent discrimination.”

United Future leader Peter Dunne said it would be of “extreme concern” if that was the case.

He said it was important to hold some sort of investigation.

“This is an issue that has excited a huge amount of public attention and concern. And I think what people perceive is that the government may appear half-hearted by not responding.” (read here) 

The National Government Position – Nothing to See Here Folks… Move on!

While every political party and independent supports calls for a public inquiry, the National Government does not. This is arguably to be expected because the same government has invested heavily in “containing” political and pecuniary damages stemming from historic State institutional child abuse.

For example, recently Labour’s new deputy leader, Jacinda Ardern, attacked the government over its refusal to hold a public inquiry.

She accused the government of spending more on lawyers to fight the victims than it does on settling their claims.

In one recent case, it was shown that the National Government had spent more than a million dollars paying private lawyers to fight claims of abuse at a state-funded bootcamp on Great Barrier Island before finally settling with victims for $340,000.

Settlement with four claimants to proceedings, the last of which came in February, followed a 12-year battle in the courts which also saw the Ministry for Social Development stuck with costs due to Legal Aid of $369,000.

Jacinda Ardern called the expense and delays extraordinary and questioned whether it was a just or wise use of taxpayer money.

“No one is going to look at a case like this – with extraordinary amounts spent on legal costs and small outcomes for victims – and think this is a good process,” she said.

Ardern said figures provided to her office showed $6.5m had been spent in total by MSD on external legal counsel fighting a handful of historic abuse cases over the past decade, with only one getting to trial. (read here)

In another case, an Official Information Act request obtained by Ms Ardern showed one lawyer for the Crown, Kristy McDonald QC, was paid $777,000 for her work on three historical abuse cases alone.

It followed news the government spent $700,000 fighting just one compensation case prior to this.

Ms Ardern asked Mrs Tolley, the Minister for the MSD, why so much was being spent on lawyers.

“Why is she willing to spend millions of dollars fighting historic abuse claims but won’t act on the call for a state inquiry into abuse to ensure it never happens again?”

The minister responded that “there is a requirement and the Crown does have a responsibility to protect the taxpayers’ interest where there are significant and complex claims or matters which will have considerable impact on future taxpayers”.

Indeed, but where is the justice in all of this?

It is, after all, an absurd proposition when one considers that the perpetrator of abuse then gets to act as judge and jury in resolving claims of abuse. Put another way, it raises serious concerns when one considers that the perpetrator of crimes – the New Zealand State – should then act as the entity that determines justice for the victims of those crimes. Surely that is the same thing as the Catholic Church dealing in-house with claims of abuse? And we all know now, thanks to public inquiries, where that has led.

A key philosophical question for myself is can those responsible, as the party who is liable, both politically and financially, be entrusted with investigating the crimes it is responsible for and offering remedy to victims? Such a scenario seems fraught with conflicts of interest. Certainly, given what is now being exposed through inquiries such as the Australian Royal Commission into Institutional Responses to Child Sexual Abuse, history tells us that when institutions investigate their own, aberrations of truth and justice invariably result.

These thoughts are perhaps echoed in Anne Tolley’s ““there is a requirement and the Crown does have a responsibility to protect the taxpayers’ interest where there are significant and complex claims or matters which will have considerable impact on future taxpayers”.. 

The only thing I wonder though, Ms Tolley, is don’t you think the tax payer should be aware of the facts before they themselves decide what is fair and what is not? And making the tax payer aware would surely come down to a public inquiry.

On this note, I’d like now to take the opportunity to publicly respond to some statements that National Party representatives have made when explaining to the media why there is no need for a public inquiry. My responses will be made from the perspective of New Zealand’s historic State abuse survivors. While I am just one voice, I feel I can speak on the part of the many given I have spent years advocating and lobbying for the historic abuse claimants.

Firstly, I would like to respond to something the now ex PM John Key said on why in his view there is no need for a public inquiry.  To quote:

1)     “An independent inquiry in the United Kingdom had gone badly”

Response:

While the UK inquiry – the Independent Inquiry into Child Sexual Abuse (IICSA) – has had setbacks (not the least of which was appointing a NZ judge who took 77 days off in a year and had no understanding of the legal system she was expected to work within) it is currently full steam ahead and investigating the mass export/deportation of the UK’s child migrants to countries such as Canada and Australia. Notably, it is the UK Government itself that is being investigated over these deportations which have been labeled “human rights violations” and the “most catastrophic child abuse in memory.” (read here)

The IICSA will be investigating some powerful, high profile people including the alleged Westminster Pedophiles which is perhaps, in part, why it had early setbacks. Certainly, these setbacks are related to what many saw as a lack of distance and neutrality on the part of previous inquiry heads from powerful (potentially) vested interests.

If anything, New Zealand could learn from this experience and ensure that any public inquiry, from the outset, was established with independence and integrity in mind. This would circumvent the issues that the IICSA encountered initially.

Other than this, public inquiries in several countries have gone extremely well. For example, the Australian Royal Commission (ARC) has been instrumental in setting the bar for all institutional child abuse inquiries to follow. The ARC has resulted in significant policy and law changes that will act to protect children for generations to come. The ARC has played a pivotal role in the realization of justice for many victims.

Among other things, several public apologies have been made, statute of limitations for historic child sexual abuse cases has been removed as a legal (technical) defense in most Australian States, systemic and endemic abuse has been uncovered and numerous cover-ups have been exposed.  Of course, one could argue that the Australian Royal Commission “had gone badly” but this could only be argued by the perpetrators of institutional child abuse. For example, it has definitely gone badly for the Australian Catholic Church and other once respected institutions. And perhaps, if truth be told, that is more to the point. I.e. an independent public inquiry could go very badly for the National Government given the way it has dealt, in-house, with claims of historic State institutional child abuse.

Moving on to something the current PM Bill English said. To quote:

“The question would be, would an inquiry add anything.”  

Response:  

As Judge Carolyn Henwood from the the Confidential Listening and Assistance Service (CLAS) has said, “we’ve done half the job … we’ve done the listening to 1100 people … What we don’t know is why it went on. We haven’t investigated the department itself, we haven’t spoken to staff … So why wouldn’t it happen again? … We do not know the why of it.”

What Ms Henwood perhaps neglected to also mention was your government shut the doors to the CLAS before many stories were heard. For example, the CLAS final report notes:

 “When the service was first established, it was expected to have a lifespan of five years. In April 2012 the cabinet approved an extension until June 2015. We now come to a close of the Service, yet concerns still remain and other people may still be in need of our help.” 

“A total of 156 prisoners registered with the Service but many prisoners left prison before we were able to meet with them and we lost contact… Many inmates who remain in prison have not had the opportunity of meeting the Service… word of our existence has only just begun to spread amongst prisoners despite extensive engagement with prison staff over the years.”

“It is clear that unfinished business remains. Since we had to close off registrations in 2013, we have had more than 150 people contact us and we have referred them onto the relevant Government Departments. It is disappointing that some people will be left “up in the air” following the closure of our Service. To get to the end with no resolution in sight for some is not satisfactory.”

Other than this, stories of abuse post 1992 were excluded from CLAS. This means anyone who was abused in State care post 1992 was silenced by the remit of the CLAS.

To put some perspective on this, a person who was born on 1st March 1992 would be 25 today so a child who was aged 10 in 1992 would be 34 – 35 years old now.

Ms Hill from Cooper Legal, the law firm that represents many historic abuse claimants, said she supported an inquiry, as her firm’s work showed the government had not learned anything from the past.

“Our clients are getting younger – our youngest client is 18 – so the Ministry [of Social Development] has clearly not learned from things that have gone wrong previously.”

The ministry was using a pending restructure of Child Youth and Family as an excuse not to open an inquiry, but that restructure would not change anything, Ms Hill said.

“That’s done without any understanding of what’s happened earlier, no understanding of the flaws in the system.” (read here)

Additionally, many voices like my own were silenced due to the fact I live outside of New Zealand. This is not insignificant when considering New Zealand’s long history with mass migration and that many survivors of New Zealand’s institutions (me included) fled New Zealand and now live abroad. It does make sense, after all, that many people who were abused (beaten and raped) at the hands of a State would flee that State as soon as possible. For example, about 50% of New Zealand’s State abuse survivors I have spoken to, many of whom are now living in Australia or elsewhere, didn’t have their stories heard by the CLAS.

Thus, I would put it to you Mr English that the 1100 stories heard by the CLAS are just the tip of the iceberg. Of course, the way to confirm this is through holding an independent public inquiry.

Additionally, no investigation into the scope of institutional racism and the disproportionate overrepresentation of Maori in State institutions has occurred. This issue is now subject to legal action at the Waitangi Tribunal where, as previously noted, a claim calling for an independent inquiry into State welfare abuse that disproportionately affected Māori has been lodged.

Furthermore, the CLAS was not so much an independent public inquiry – the form of inquiry that survivors and others are calling for – but a semi-independent listening service whose panel was expressly forbidden from making public or ministerial comment.

The point of an independent public inquiry is to ensure widespread public knowledge and public accountability. The CLAS did none of this because it was structured in such a way as to keep information out of the public eye, or as its head, Judge Carolyn Henwood, put it: “One part of there not being an inquiry is that the public don’t know about any of this” as findings are “kept under the radar”. (read here)

So coming back to “The question would be, would an inquiry add anything.”  

Yes, very much it would. It would offer a more meaningful justice to victims who have arguably been strategically and purposely silenced by a government that has sort to contain political and pecuniary damages from the outset.

Additionally, New Zealand is yet to understand the scale and depths of the abuse because the CLAS fell short in its remit.

Further, with public knowledge comes public accountability. This would hopefully ensure that a repeat of past mistakes would never be allowed to occur again.

This brings me to my last response which surrounds a statement by Anne Tolley when she was questioned in parliament over whether the Nats would be willing to call for a public inquiry. To quote:

 “The question I ask is what would we gain from an inquiry that revictimises the victims for whom we are trying to get some compensation and some settlement. It is appalling that we would put those people through that again.”

Response:

As you would know from our past contact Ms Tolley, the survivors of New Zealand’s institutions and their supporters have vigorously lobbied for a public inquiry. For example, recently a petition was taken around New Zealand by survivors who are calling on a public inquiry. Additionally, I myself have lobbied for a public inquiry since 2011 after the treatment I received at the hands of your government during the course of my claim. In fact, I am yet to meet a single survivor of New Zealand’s State institutions that does not support a public inquiry.

In truth, it is your government’s resolution of claims that revictimises the victim. For example, in my case I was denied access to the CLAS, denied legal aid, denied an independent and impartial investigation, denied every single piece of OIA I applied for with the Ministry concerned, and the apology I received failed to acknowledge the facts of my abuse and came with a legal disclaimer. Let’s not even talk about the disgusting redress that was offered up, which amounted to another kick in the guts from the New Zealand State. It, therefore, comes across as extremely questionable (devoid of credibility) when you present an argument that you are concerned about revictimising the victim. Too late !!

In short, State abuse survivors and others are calling for an independent public inquiry. As I have previously informed you, this inquiry, in my mind, among other things, would need to investigate how your government has gone about resolving claims of historic State child abuse.

What’s most disgusting about all of this Ms Tolley is survivors of State abuse with extremely limited resources have been forced to fight tooth and nail for justice against a government that has far greater resources and has done everything in its power to circumvent the realization of a meaningful justice for survivors. This in the strictest sense of the word is revictimisation.

Please do not speak on our behalf. We’ve had quite enough of that and we are sick to death and tired of hearing half-truths and no truths spoken by National officials.

If you truly give a damn about not revictimising the victim call for an independent (I stress “independent”) public inquiry. Let the public be the judge of just what has occurred over generations in New Zealand’s institutions.

More soon…. Stay tuned!!

Hear from another survivor of New Zealand’s State institutions re a public inquiry and institutional racism (read here) 

One comment on “The Road to a Public Inquiry

  1. charmaine on said:

    Yes a public enquiry is a must.All the horrible abuse must come out in the light not hidden away anymore. New zealand has a right to no of the cruel inhuman behaviour that happened in the governments concentration camps for children

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