Commissioners of Abuse in Care Royal Commission reflect on the landmark inquiry.
Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.
Royal Commission of Inquiry into Abuse in Care report says ‘unimaginable’ and widespread abuse in care between 1950 and 2019 amounts to a ‘national disgrace’.
200,000 out of an estimated 655,000 in care were abused and many more neglected, with Māori disproportionately affected and subjected to overt and targeted racism.
How would he set up a system of state care centred on the principles of te Tiriti o Waitangi, as recommended, while reviewing/removing other Treaty references, and introducing a bill that would redefine those principles?
How would he justify a new system of state care focused on keeping children at risk with their wider whānau, while repealing a legal provision aiming to do just that?
It’s not unusual for governments to ignore recommendations in royal commissions of inquiry - hate speech, anyone? - and Luxon is under no obligation to adopt any of those outlined in today’s report.
But how serious can Luxon be about righting the horrific wrongs of the past if many of them end up gathering dust?
Prime Minister Christopher Luxon says a public apology for the abuse of those in state care will be delivered in November. Photo / Mark Mitchell
Special rights for survivors
A mere glance at the report is enough to know that the horrific abuse that took place is a national disgrace, and a complete system overhaul is needed to reverse the damage that continues to this day.
The state is responsible for the wrongs that happened - for at least 200,000 people - the past failures to make it right, and the challenge now to make it right.
Whanaketia, released today, follows the 2021 interim report on redress that included 95 recommendations. The previous Government started a process for creating an independent system of redress, and finishing this - including how much money to put towards it - is a priority for Luxon in the coming months.
Whanaketia contains a further 138 recommendations, which centre on key themes.
One is that survivors of abuse and neglect deserve special treatment in the justice system. This is a recognition of the state’s negligence contributing to the damage they suffered, and to any crimes they may have committed afterwards.
The recommendations would make it more likely for any of their allegations of abuse to lead to prosecutions (their complaints would weigh more heavily on the “public interest” scale). Any crimes of violence or neglect when they were under 18 years of age would lead to a longer sentence (a wider net than the current age threshold of up to 14).
If survivors were convicted of a crime themselves, a judge would be more lenient in sentencing when considering any previous convictions - including from the Youth Court - for offending that happened “in response to abuse and/or neglect in care”.
Special treatment would extend to timeliness, due to civil proceedings for survivors being prioritised, and to legal aid, which they should have easier access to.
Commissioners also want a $10,000 cash payment to families cared for by abuse survivors, a recognition of ongoing intergenerational trauma; this is a fraction of the estimated average lifetime cost to a survivor ($857,000) of what they’d missed out on if they’d had a normal life.
From state care to gang life
Luxon might well agree that those who suffered at the hands of the state are entitled to special rights in the justice system, as well as $10,000 cash for their families.
The conundrum is that many of those who were abused in state care ended up in gangs, which provided them with a sense of security and belonging.
“Gang whānau are a product of the state,” says Arewa Ake te Kaupapa, a submission to the Royal Commission following a hui last year with more than 200 gang whānau, including members of the Mongrel Mob, Black Power, Head Hunters and King Cobras.
Many joined after leaving state care. Others signed up while still institutionalised, or even beforehand.
“Recruitment to gangs while in State Care set a number of rangatahi on a pathway to prison, with a significant subsequent effect on their life trajectories,” independent research to the Royal Commission said.
“A gang presence was intermittent in the 1960s but became increasingly apparent in State Care institutions in the 1970s. In 1981, for example, youths with gang affiliations accounted for more than 80% of admissions to Auckland’s Owairaka Boys’ Home. More recently, foster homes have become a key site for gang recruitment.”
A typical experience is that of former King Cobras member Feke Taito, who learned to steal cars, pick locks, and use cannabis while at Owairaka, putting him on an inevitable pathway.
“My family and I were not offered support at the time I was taken into care. Instead, I was removed and placed in an environment where I was moved closer towards a gang lifestyle,” he told the commission.
“This was partly through my introduction to crimes and offending and drugs at Owairaka and then being placed in close proximity to older, hardened criminals at the halfway house, at Waikeria [youth reform facility] and at Mt Eden Corrections Facility as a young man [age 17].”
There’s a tendency to view joining a gang as a choice rather than due to “structural issues that contribute to gang joining and subsequent offending”, according to the Prime Minister’s chief science adviser’s report on gang harm.
But for some, “their gang joining was largely facilitated by the state”.
This continues to this day, the report said; a sample of 2000 gang members in their early 20s were more “likely than the population average to have contact with OT [Oranga Tamariki], experience an OT investigation, and to be placed in state care.”
Former King Cobra gang member, Fete Taito. Photo / Ben Dickens
Is gang life a choice?
There are also many survivors of abuse in state care who didn’t join a gang and went on to live fulfilling lives. This lends weight to the Government’s view that joining a gang is more of a choice, and less of a consequence of structural issues.
“There are many things that are associated with crime, such as terrible upbringings and violent upbringings and poverty and a whole host of issues, but not everybody in that category chooses to go and have a life of crime,” Justice Minister Paul Goldsmith told the Justice Select Committee in June.
“And so you can never lose sight of the need for individual responsibility and that people need to be held to account for their actions. And that’s a fundamental part of our approach to justice.”
That includes the right to freedom of expression (because gang patches will be banned in public places), peaceful assembly (due to the police power to disperse a gang gathering), and freedom of association (due to anti-consorting orders).
These are included in the Government’s anti-gang legislation, which also adds gang membership as an aggravating factor at sentencing regardless of whether it has anything to do with the crime.
Consider this push-pull scenario: a gang member who is also an abuse survivor comes before a judge for sentencing after being convicted of a crime. He has a host of previous convictions that would normally lead to a longer sentence, but they’re considered “in response to the abuse” he suffered in state care.
The judge must ensure he’s not “unduly penalised” for these convictions, in accordance with the commission’s recommendations. But under the Government’s law change, his sentence must also be longer because he is a gang member.
Some leniency, then, for what arose from the harm the state is responsible for, but the opposite for what the pathway from that harm led him to.
Coalition agreements between the three governing parties has committed the Government to introducing a bill on the Treaty of Waitangi principles, reviewing all references to the Treaty principles in legislation. Photo / Mark Mitchell
Treaty principles
Commissioners want the state care system to be overhauled, with an independent agency and new legislation reflecting te Tiriti and its principles - including in its design, and how it operates - as well as the United Nations Declaration on the Rights of Indigenous Peoples (Undrip).
Their report notes te Tiriti principles of partnership, active protection and equity, all of which would be erased under a bill Luxon’s Government is putting together - although Luxon has said he will kill the bill after its first reading.
Funding has also been frozen (pending a review) for the rollout of Te Ao Mārama, the court programme that commissioners want the Government to “support and invest in” because it recognises and addresses the harm caused in state care.
And commissioners want all state care placements to be as close to the family or whānau as practicable. This was the aim of section 7AA of the Oranga Tamariki Act - whether it was successful is another question - which the Government is repealing, saying it led to a divisive system.
A Houdini act?
Luxon did not resile from his gang policies in today’s press conference, nor did he say whether he was willing to give cash payments and special justice treatment to survivors, a group that will include some gang members.
“Gangs in New Zealand cause huge pain and suffering – that is unacceptable. We are determined that gangs cannot peddle harm and suffering on their fellow citizens,” he said.
The Government will issue a formal apology on November 12, and use the time until then to work its way through the recommendations.
Luxon may find a way to continue his Government’s direction while meeting the commissioners’ broad goals.
He could adopt special rights and cash payments for survivors but exclude gang members - whether this would be fair is a separate question - which would then become incentives to leave a gang.
Dumping section 7AA doesn’t necessarily doom a whānau-centred approach to state help and state care, and the Government has other programmes - such as Social Investment 2.0 and Whānau Ora - supporting such an approach.
He might create an independent Care Safe Agency, supported by new legislation, that’s effective and inclusive - especially for Māori, Pasifika, the deaf, and the disabled - without referencing te Tiriti.
Luxon said the Government would provide “clarity” by the end of the year. What that entails will reveal what he thinks is necessary - and what he can shelve - to remedy the shameful wrongs of the past, and prevent history repeating.
Commissioners' recommendations would essentially give special rights in the justice system to survivors of abuse in state care - a recognition of the damage that the state is responsible for. Photo /123rf
FAMILY VIOLENCE
How to get help:
If you’re in danger now:
• Phone the police on 111 or ask neighbours or friends to ring for you.• Run outside and head for where there are other people. Scream for help so your neighbours can hear you.• Take the children with you. Don’t stop to get anything else.• If you are being abused, remember it’s not your fault. Violence is never okay.
Where to go for help or more information:
• Women’s Refuge: Crisis line - 0800 REFUGE or 0800 733 843 (available 24/7)• Shine: Helpline - 0508 744 633 (available 24/7)• It’s Not Ok: Family violence information line - 0800 456 450• Shakti: Specialist services for African, Asian and Middle Eastern women and children.• Crisis line - 0800 742 584 (available 24/7)• Ministry of Justice: For information on family violence• Te Kupenga Whakaoti Mahi Patunga: National Network of Family Violence Services• White Ribbon: Aiming to eliminate men’s violence towards women.
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