A Structure of Impunity | Newsroom

Comment

The Prime Minister attended the Queen’s funeral and the UN’s General Assembly in a week. But Aaron Smale asks whether her Government’s behaviour at home is insulting to both institutions and the nation’s children. 

Comment: The Government has betrayed survivors of state abuse. But what could be worse is that it has also betrayed future generations of children by passing legislation that creates impunity for the state. The state will continue potentially being an abusive parent to thousands of children because there are no consequences for doing so.

In the process, the Labour Government, like those before it, has made a mockery of the ‘royal’ in the Royal Commission and is thumbing its nose at the UN.

The Royal Commission into Abuse in Care held a hearing in which government officials were supposed to answer for the crimes committed against children in the state’s custody.

It was during the first week of that hearing that the Government passed legislation that will not enact accountability for children harmed by the state.

In 2017, Ardern stood on the steps of Parliament when she was an MP in Opposition and promised survivors of state abuse that if Labour made government it would hold an independent inquiry.

She did announce a royal commission when she became Prime Minister. But at the announcement in 2018 she said: “We have a huge responsibility to look after everyone, particularly our children in state care. Any abuse of children is a tragedy, and for those most vulnerable children in state care, it is unconscionable.

“This is a chance to confront our history and make sure we don’t make the same mistakes again. It is a significant step towards acknowledging and learning from the experiences of those who have been abused in state care.”

But it appears nothing has been learned. The legislation her Government has passed – the Oversight of Oranga Tamariki System and Children and Young People’s Commission Bill – will allow abuse to happen again without consequences for the Crown, but horrendous consequences for potential victims.

Victims have come forward to the royal commission to give evidence – and many have done so because they don’t want the abuse they went through to happen to another child.

The commission deliberately held hearings about ‘redress’ at the earliest opportunity. It came back with a report on redress late in 2021 and it included a section on oversight. In that section it made a number of recommendations, but two that were hugely significant if long overdue.

The commission recommended that: “The Crown should create in legislation: a right to be free from abuse in care; and direct liability for a failure to fulfil the duty.”

The Royal Commission said that enacting these recommendations in legislation “would allow any future victims of abuse to hold the Crown and other care providers to account”.

But these recommendations were left out of the legislation that has just passed, a failure of responsibility for what happens to children in state custody.

You have to wonder what the Governor-General Dame Cindy Kiro, a former children’s commissioner and the monarch’s representative, thinks when she rubber stamps this law. She would also be well aware of the commission’s recommendations as anything the commission reports back to the government goes through the Governor-General first.

If these recommendations were written into law then government departments would actually face consequences if a child in state custody was abused. Why would they suddenly want to be held accountable for their failures?

But this kind of legal consequence would act as a deterrent and would force the institutions to change their behaviour. Without this deterrent, there is no incentive to change the kind of behaviour that has led to abuse over years, impacting generations of families.

Here’s the test: if a child is harmed in the state’s custody after this legislation is passed, what will be the consequences for the state? The answer – nothing.

It occurred to me that over the six years I’ve covered this issue I’ve essentially been writing the same story over and over. That story could be summed up by one short phrase – the impunity of the state.

If six years sounds like a long time, the victims have been going through it for decades and it’s not a story for them, it’s their lives. It is frightening that the state can commit crimes against children and there are no consequences.

Pointing to payouts is not a counter-argument when those payouts are not compensation (the Government admits no liability) and the government lawyers fighting victims get paid more than all those victims put together. That doesn’t even take into account the hundreds of millions being spent on the royal commission.

While the Government is not willing for the state to be held accountable, there are other mechanisms that may come into play.

New Zealand is a signatory to the UN’s Convention on the Rights of the Child and the country’s performance against that convention is reviewed every five years. Children’s advocates are already lining up to tell the UN how New Zealand is failing in its obligations. Ardern was at the UN last week but she’ll not want to talk about those failures while in the global spotlight in future.

The UN Committee Against Torture recently had this to say about New Zealand’s response to Lake Alice: “The authorities of (New Zealand) made no consistent efforts to establish the facts of such a sensitive historical issue involving the abuse of children in state care.”

It was under Labour’s Helen Clark that the government went down a path that avoided legal liability for abuse that occurred in state institutions. This strategy emerged out of the civil litigation over the abuse that occurred at the Lake Alice adolescent unit.

But this lack of accountability carried on in criminal investigations. The police failed to properly investigate the crimes committed at Lake Alice, which Justice Rodney Gallen described as “outrageous in the extreme”.

Both Clark and then-health minister Annette King couldn’t help but recognise how outrageous those crimes were, similarly the Attorneys-General Margaret Wilson and Michael Cullen, because the machinery of state had access to the evidence.

But police were never given all the evidence. To say it was an operational matter for the police misses the point. If the Crown is knowingly withholding the very evidence that would have led to criminal charges being laid then what does that say about whomever withheld that evidence? The police might like to seriously weigh that question.

Consequently the police never did a proper investigation, which the UN later found to be a breach of the Convention Against Torture.

In a perverse way, this was what led to the Royal Commission as the issue continued to fester because victims of state abuse kept running into the obstinate and unrepentant attitudes of the state.

Off the back of that frustration Ardern promised an inquiry, which will cost taxpayers $150 million. But it will be a dud because the Government has already ignored it with this latest legislation. Labour MPs, particularly the Māori MPs, should hang their heads in shame for passing this legislation.

Even in the forum of the commission, the state’s agents still act with a sense of impunity.

Throughout the commission’s public accountability hearing, bureaucrats repeatedly used the phrase “we acknowledge, we acknowledge, we acknowledge”. It seems obvious that they were being as bland as possible to not say anything meaningful for risk of opening up their employer, ie. the state, to legal liability.

There were also attempts to narrow down the nature of the crimes to isolated individual failings in order to suggest the crimes weren’t systemic, when the numbers clearly say otherwise. Commissioner Paul Gibson became highly irritated by a bureaucrat constantly referring to incidents of abuse as “mistakes”. They are not mistakes, they are crimes.

The majority of children in state custody who have been the victims of these crimes are Māori. When they become adults, the Crown has sent these damaged and traumatised individuals to jail for their crimes – the commission found up to 40 percent of Māori children who went through welfare homes ended up in jail.

This legislation will do nothing to break that cycle or hold anyone accountable.

I spoke to Emeritus Professor of Law Jane Kelsey about the commission report which showed a high percentage of those who went through state welfare homes ended up in prison. She said this had been known for decades but the state had operated an “orchestrated institutional amnesia”.

When you look at so many examples, like politicians and officials having had nothing to say about Crown Law withholding evidence from police only a couple of years ago, that orchestrated amnesia seems endemic.