Prime Minister Christopher Luxon delivers a national apology to the survivors of abuse in state care. 12 November 2024
Opinion by Simon Wilson
Simon Wilson is an award-winning senior writer covering politics, the climate crisis, transport, housing, urban design and social issues. He joined the Herald in 2018.
Simon Wilson is an award-winning senior writer covering politics, the climate crisis, transport, housing, urban design and social issues, with a focus on Auckland. He joined the Herald in 2018.
OPINION
Two sharp questions about principles emerged last week: why won’t Solicitor-General Una Jagose resign over thefindings of the Abuse in Care inquiry? And why does the Prime Minister let Act persist with its Treaty Principles Bill when it undermines good governance and Act’s own principles?
When it comes to principles, it’s hard to beat the integrity of doing the right thing.
Why the Solicitor-General should resign
The report of the Royal Commission of Inquiry into Abuse in Care says: “Political and public service leaders spent time, energy and taxpayer resources to hide, cover up and then legally fight survivors.”
Una Jagose, Solicitor-General from 2016 and before that a Crown lawyer handling cases of abuse in care, was one of those leaders. She confessed to the commission the conduct of staff at Lake Alice Hospital and probably elsewhere met the accepted United Nations’ definition of torture.
Crown Law and the Government knew this. They’d known it since the late 1990s, when a Cabinet report revealed allegations of sexual and physical abuse, including credible accounts of the use of “paraldehyde and/or unmodified electroconvulsive therapy (ECT) for the purpose of punishment”.
“Unmodified ECT,” said the report, “is ECT without anaesthetic or muscle relaxant ... Paraldehyde is an anti-convulsive drug. It can cause extreme pain when used extramuscally.”
Solicitor General Una Jagose. Photo / Andrew McRae
Yet Jagose was also a principal agent of the strategy to ignore and deny this information, to wear down survivors and dissuade them from taking legal action, to limit the Crown’s legal and financial liability. This strategy delayed justice and allowed more abuses to occur for many years.
Aaron Smale, a journalist at the forefront of reporting on this issue, says: “The victims of the state were effectively treated as legal enemies of the state. The victims of the state’s crimes were treated like criminals, while the real criminals walked.”
The argument in Jagose’s defence could be that she was following orders, which came from successive Governments. The Attorney-General, Judith Collins, says this is why she will not sack Jagose.
Collins is right: the politicians are ultimately responsible and it would be wrong for one of those politicians to sack an official for carrying out political instructions.
But that doesn’t mean Jagose shouldn’t resign anyway.
There’s a social contract that operates between citizens and the politicians and officials who define the legal framework of our lives. We give them the right to do it, and in return they accept certain responsibilities.
Sometimes those responsibilities are hard to define. But often they’re not. It’s easy to agree our representatives and their officials will not gratuitously punish us, harm us or destroy our lives.
This was torture carried out by the state, which meant that on top of all the physical and mental harm it caused, those children also knew there was no one they could turn to. Day after day, they had to carry the crushing weight of knowing they would not be saved.
It should not be difficult for any public servant to understand this. If you are part of a sustained campaign to delay and deny justice for the victims, revictimising them all over again through legal processes, you are not fit to hold public office.
And even if you understand, now, that what you did was wrong – as Jagose has said she does – you should still resign. You are responsible for yourself.
The Archbishop of Canterbury resigned last week, because he enabled crimes against children by not doing enough to stop them. His sins are less than those of Jagose, but his sense of responsibility is greater.
By staying in office, she invites us, along with all public officials, to believe it’s okay for them to fail in their duty of care.
But it isn’t.
As for Judith Collins, she was one of the responsible politicians. In 2014, as Minister of Justice, she even told the UN: “I can advise that there is no state torture in New Zealand.”
It’s not clear what she knew at that point. But Crown Law certainly knew she was wrong. And the strategy to minimise Crown liability had been adopted by her Government, as it was by every Government from the 1990s until the royal commission was finally established in 2018.
Further, as a signatory to the UN Convention Against Torture, New Zealand was supposed to carry out “thorough investigations” of allegations of torture. Despite being confronted at the UN with the allegations, Collins did not do that.
Almost none of the politicians who were complicit in this terrible abuse-in-care scandal is still in Parliament. But she is.
Why the Treaty bill breaches Act’s own principles
It’s 21 years since American novelist Toni Morrison won the Nobel Prize for Literature and almost 50 years since she told an audience in Portland, Oregon: “The function, the very serious function of racism is distraction. It keeps you from doing your work. It keeps you explaining, over and over again, your reason for being.”
How does that bill sit with the Act Party, whose founding principles include respect for contract law, property law and the rule of law in general?
Act Party leader David Seymour. Photo / Ben Dickens
The scope of the Treaty of Waitangi is far grander than its narrow legal status. But as has been noted by more than 40 king’s counsels and former Prime Minister Dame Jenny Shipley, Act’s bill fails on basic legal grounds just as much as it does on harder-to-define cultural and social ones.
The fact is, the Treaty is a contract. It explicitly recognises property rights.
It’s true Māori and Pākehā had different understandings of what “property” meant in 1840. But in relation to Seymour’s bill, that’s neither here nor there. In this contract, the Crown committed to upholding what it understood to be the property rights of Māori.
That is not in dispute.
Now, Act wants the Crown to walk away from its commitment.
If this was a good-faith debate about a problem with the contract, as Act claims, we wouldn’t be going about it like this. The process would start with good-faith dialogue between the descendants of the Treaty signatories. That’s the Crown on one side and iwi and hapu on the other.
If the issue really was how to build a cohesive society by safeguarding the democratic rights of all citizens, as Act claims, the same would apply.
But Act didn’t do that. Instead, it wants one party to the contract – the Crown – to rewrite the deal to suit itself.
In practice, this is what Sir George Grey did. He secured more land for settlers by ignoring the understanding of the Treaty that had prevailed on both sides when it was signed. That caused the wars of the 1860s and eventually led to the long, ongoing process of redress we now know as the work of the Waitangi Tribunal.
Why is the Act Party set on a course that ignores contract law and property rights?
Because it doesn’t really care about property rights? I bet it does.
Or because it doesn’t care about the property rights of iwi and hapū? So much for the “one law for all” principle it pretends to be upholding with its Treaty bill.
Why is it doing this? Because during the six months of select committee hearings, Seymour will be able to tour the country building his party base among everyone who thinks Māori have been allowed to “get away with too much”.
As for Christopher Luxon, how is it that the coalition agreement is an inviolable contract, but the Treaty of Waitangi is not? He’s a fool for getting the country into this mess.
What should he do now? Enable six months of chaos, or pull the plug: honour this commitment, or that one? Either option will cause an uproar.
The best thing is to do the right thing. Over time, it will become the only defensible position and it’s also, plainly, in the best interests of the country. There’s a principle to stand solid on.
Meanwhile, the distraction of racism. There’s so much work to do, in economic development, healthcare, housing, education, workers’ rights, the environment, welfare support, making the culture bloom, building the community that can sustain it all. So many people are hard at work doing all that. And this distraction undermines it all.
