Abuse survivors retraumatised, 'frequently disbelieved' by Government focused on protecting public funds

Wednesday, 16 December 2020

Public Service minister Chris Hipkins addresses the interim report of findings by the Royal Commission of Inquiry into Abuse in State and Faith-based Care that was released in December 2020. (Video first published in December 2020)

An interim report from the Royal Commission of Inquiry into Abuse in Care has identified systemic failures in the handling of abuse claims by the state, with aggressive Crown lawyers and laws tilted against survivors leaving many retraumatised and “frequently disbelieved”.

The wide-ranging criticism of the Government's approach to survivors has prompted a promise to review the Limitation Act, which Crown Law has used many times to successfully defend itself against abuse claims, even when the courts have found abuse did occur.

The report, Tāwharau: Pūrongo a te Wā, which was one of three released on Tuesday, provides a summary of the commission's work to date, gathered from private and public hearings. It also concluded abuse in care continues to happen in New Zealand today.

Since the five-year inquiry was established in 2018, 1900 survivors and about 350 witnesses have registered with the commission.

Its findings show a range of problems raised by survivors in the inquiry’s process, including how the Limitation Act is used.

Public Service Minister Chris Hipkins said legislation changes were coming.

* Royal Commission: Solicitor General denies lengthy legal action used to wear down survivors

* The Detail: The inquiry and the cover ups over abuse in state care

Public Service Minister Chris Hipkins said there had already been improvements to state care since 2000 and more change was coming.

He said the hurt and anguish that had been caused in New Zealand’s history was inexcusable.

“We should never underestimate just how traumatic the experience will have been for the victims. And we should never underestimate what a long legacy that abuse has left.

“This is not New Zealand at its best, it is New Zealand at its absolute worst. I think we would all be horrified by some of their stories,” he said.

On specific changes to Limitation Act, Hipkins said he did not want to pre-empt the commission's final findings.

“But we are not going to just wait until the final report is received.”

“Survivors have told us they find it difficult to navigate the different redress processes operated by state agencies and we are exploring whether a single entry-point is possible for historic claims.

Judge Coral Shaw, the chair of the Royal Commission of Inquiry into Abuse in Care.

“The Limitation Act, which sets time limits on recognising civil claims against the state, has been used to deny claims in court and we are already looking into how the act might be applied in future for historic abuse claims.”

This limit was identified as one of many legal barriers to hundreds of survivors receiving justice.

Under the law, which was updated as recently as 2010, abuse victims that do not bring a claim within six years of the offending are highly likely to have it dismissed by the courts.

This and other legal barriers, such as laws protecting staff privacy and accident compensation laws that prevents claimants from suing for injury, means that the Crown has been able to successfully fight off claims of abuse even when the judge finds that a claimant was abused.

The Government has been so successful in deflecting these claims, the commission found, that it has deterred many victims from coming forward.

“Of the hundreds of claimants who have filed cases in courts, only a handful have ever had their claims fully heard. Of those claims, very few were decided in favour of the claimant. The barriers to a successful judgment are substantial and numerous,” the report said.

In one instance, Crown lawyers failed to disclose information about an alleged abuser's previous convictions to the claimant for “a long period of time”.

In other instances, the government's legal team hired private investigators with “overly broad instructions”, opposed name suppression for a sex abuse victim on “strategic grounds”, and convinced a claimant to drop a police complaint on grounds that later proved unfounded.

The report found survivors who made claims were frequently disbelieved and forced to retell their experiences again and again, which they found retraumatising.

The commission said it heard evidence that Crown Law and government agencies avoided paying compensation even when abuse was proven.

It found the state’s redress processes, including the Crown’s approach to civil claims, had been overly focused on the financial implications to the state, rather than on providing satisfactory compensation to survivors and ensuring their wellbeing.

“The Crown has vigorously defended claims in court, while government agencies have developed alternative out-of-court claims processes that survivors describe as protracted, lacking transparency, inconsistent and full of hurdles,” the report stated.

Hipkins said that over time the Crown had spent a disproportionate amount of its energy defending unacceptable behaviour, rather than taking a victim-centric approach.

“That is a strategy we have already changed and we are continuing to look at that.”

Speaking to media on Tuesday, Hipkins said he would not comment specifically on survivor compensation until the final report was released but said there would be some changes in the Government's approach to compensation.

He said a decision on a Crown formal apology to the victims would be made once the commission's final report was published.

In giving evidence to the commission, Solicitor-General Una Jagose acknowledged the Crown had not been “sufficiently survivor-focused”.

However, she said the Crown needed to balance abuse claims against “the need to be responsible with public money”.

To date, 350 private sessions with survivors and commissioners have been conducted.

A second part of the report analysed 50 of these private sessions and the survivors’ experiences.

Physical and sexual abuse, which included fondling and penetration, were the most common types of abuse reported to commissioners.

The impact on survivors was wide-ranging, from drug and alcohol addiction to suicidal thoughts to crime and sexual behaviour.

“Some survivors found redress and rehabilitation processes useful in helping them rebuild their lives but others felt the compensation was inadequate, given the nature and duration of the abuse and the profound impact on their lives.”

Survivors told the commission of a “wide and disturbing” range of abuse.

This included physical assault and sexual abuse, unreasonable physical restraint, cruel, inhuman and degrading treatment, use of medication and medical procedures such as electro-convulsive therapy as punishment, unjustified solitary confinement and isolation, improper strip searches and vaginal examinations, verbal abuse and racial slurs.

A statistical report and an economic impact report were also released on Tuesday.

The statistical report showed as many as 655,000 children went through different state and faith-based care institutions between 1950 and last year, and up to 39 per cent of them could have been abused.

In an economic impact report, the commission tried to calculate the average lifetime cost for an individual abused in care and came up with a figure of $857,000. This included $673,000 in pain and suffering and premature death, and $184,000 in healthcare, state costs and productivity losses.