The principal avenues for redress for survivors are government agencies’ out-of-court claims processes, civil litigation and the accident compensation scheme. Yet there are other avenues, that can be used to achieve some things and go some way towards restoring the mana or oranga of survivors of abuse in care in some cases.
The Human Rights Review Tribunal, for example, can hear cases about some rights breaches without as many of the technical barriers as confront civil litigants, while the Waitangi Tribunal can investigate breaches of te Tiriti and make recommendations for collective redress for Māori. The Office of the Ombudsman can independently inquire into and make decisions on issues that may arise as survivors work their way through claims processes. Survivors can try to hold perpetrators to account and prevent them from abusing others using the criminal justice system and professional disciplinary bodies. The Office of the Health and Disability Commissioner and the Office of the Children’s Commissioner can make recommendations to prevent abuse, which is a form of redress. None, however, can offer a full range of redress options, and survivors who go to them can face delays and underfunded services.
Criminal justice system
Some survivors want their abusers investigated, charged and convicted. The conviction of a survivor’s perpetrator provides a measure of accountability and justice for the survivor and can also be an important step on the road to healing. Regrettably, very few perpetrators of abuse in care have ever stood before a court to answer for their actions. In the past, nearly all complaints about perpetrators never got beyond most people’s first point of contact with the criminal justice system – Police. Once a complaint to Police is made, the survivor cannot control the criminal process – it is up to Police whether charges are laid, how they are prosecuted and what sentence is sought.
Survivors’ credibility in the eyes of Police was critical. The allegations of those who had criminal convictions or had been in psychiatric institutions were often treated with scepticism. Some disabled survivors require communication assistance to share their experiences – for them, it can be a struggle even to lay a complaint. Deaf survivors struggled to be heard because sign language interpreters were rarely available. Many survivors told us that Police did not investigate their complaints because they were uninterested, considered it a hassle or did not believe the complainant. In some cases, this happened despite admissions of guilt from the abusers. Some survivors told us that Police dismissed them as “trouble-makers”, threatened them with arrest for wasting Police time or returned them to the institutions where they were abused. Survivors of sexual abuse told us Police minimised their experiences or blamed them.
Many survivors are reluctant to approach Police because they have previously been disbelieved by Police, or had bad experiences with other authority figures. Donald Ku told us that when he originally complained to Police about his abuse, he was told they would not pursue his complaint because his abuser had already been sentenced. When Police did later investigate abuse at the institution he was at, he no longer felt able to talk to them: “I was quite distressed and couldn’t keep still so I declined to make another statement. I had learnt not to trust people in authority, and I was afraid I’d have to pay back the $50,000 I was given.” Other survivors decided against reporting, concerned that they would not be believed or, worse, that their abuser would retaliate against them in response.
Survivors who have gone to Police in recent years are more likely to report a better experience, although many have still felt Police did not believe them and failed to respond in a trauma-informed way. One survivor, Ms LL, was left feeling suicidal after a police officer whom she found cold and insensitive made an unexpected visit to her home. Feeling betrayed by earlier Police inaction, she ultimately decided against making a police statement because she considered it might jeopardise her mental health. She died not long afterwards.
Many survivors said Police were only now treating as credible allegations they had made many years ago. Charlie Symes waited more than 40 years before Police properly responded to a statement he had given detailing his abuse at Lake Alice Hospital. Similarly, Ann-Marie Shelley said it took 11 years, two complaints and a review before Police even laid charges against her abuser, despite his signed admission of guilt.
Not all survivor experiences were negative. Keith Wiffin felt supported throughout the police investigation into his abuse, in contrast to the scepticism with which his allegations were met by the Ministry of Social Development. Police also helped him arrange a restorative justice session with his abuser.
Even where Police choose to lay charges against an abuser, the court process is also often difficult for survivors. The survivor has no real role, other than as a witness in the case, and often there is little support available. In recent times, the Ministry of Justice has made efforts to improve the courtroom experience for survivors, particularly in relation to giving evidence. Stricter codes of conduct and regular training requirements now apply to judges and prosecutors involved in sexual violence cases. Nonetheless, survivors still often find the courts an insensitive environment. One survivor described an upsetting experience where, giving evidence three days after having a baby, her new-born was mentioned in front of her abuser. After the trial, she felt used and abandoned by the State again when they failed to provide any counselling or support.
Human Rights Review Tribunal
In some cases, survivors might be able to get some redress through the Human Rights Review Tribunal. The tribunal’s scope is limited to claims relating to breaches of the Human Rights Act 1993 (including for example sexual harassment or discrimination), Privacy Act 2020 (including rights to personal records) and Health and Disability Commissioner Act 1994 (including where there has been a breach of the Code of Health and Disability Services Consumers’ Rights). Survivors and advocates who have gone to the Human Rights Review Tribunal say it is chronically underfunded, resulting in delays that can stretch into years. Unlike the courts where survivors frequently lose cases on technical grounds, the tribunal must rule according to the substantial merits of a case, without regard to technicalities.
Before making a claim to the tribunal, a claimant must lodge a complaint with the relevant body, either the Human Rights Commission, the Privacy Commissioner or the Health and Disability Commissioner. If the tribunal finds a claimant’s rights have been interfered with or breached, it can order the defendant to make an apology, stop or correct the breach, provide training and pay compensation. The tribunal has awarded compensation in many cases brought before it, including relatively large amounts for emotional harm and lost earnings. It uses bands as a rough guide to decide compensation for emotional harm. Depending on the facts of the case, claimants can receive up to $10,000 for less serious cases, $10,000 to $50,000 for more serious cases, and more than $50,000 for the most serious cases. It also regularly makes defendants pay the legal costs of successful plaintiffs.
The claim brought by IHC (an organisation that advocates for people with intellectual disability) against the Ministry of Education is an extreme example of the delays that can exist for those looking to the tribunal for a remedy. IHC claims that successive governments and the Ministry of Education have neglected the education of disabled children who need accommodations to learn. It has attempted to use the Human Rights Commission and Human Rights Review Tribunal to get orders that the Ministry take various actions to stop this neglect. Its claim began in 2008 with a complaint to the Human Rights Commission, and was filed with the tribunal in September 2012. Yet it is only being heard by the tribunal this year – 13 years after the claim began. The Government opposed the claim in December 2014, and a hearing on preliminary matters took place in February 2015, but it was not until February 2021 that IHC heard that its claim would go to a full hearing on its substance. In her evidence to us, Trish Grant (the Director of Advocacy at IHC) described seeking a legal remedy by filing civil proceedings in the Human Rights Review Tribunal as having been “entirely ineffective”.
More generally, the tribunal’s delays became so pronounced that in 2019 the Government appointed five deputy chairs to deal with the backlog of cases. Yet survivors say it can still take years to get a decision on even on small matters, such as striking out an application, typically followed by several more years before the substantive hearing and more again before a written decision. Survivor Jacinda Thompson waited four years for a substantive hearing on her sexual harassment claim against her abuser and their employer, the Anglican Church. Once she had finally had her hearing, it took more than a year for the tribunal to make its decision. She said it was
“emotionally exhausting being stuck in the justice system and I felt like my life was on hold”.
The very public nature of the tribunal’s hearing process – as well as its occasional side-tracks into personal matters – means that it can be a harrowing experience for individual plaintiffs.
Free legal representation (outside of general legal aid support) is only available for a small number of cases, particularly those that could lead to change on issues experienced by others beyond the claimant themselves. Even claimants pursuing important cases of this sort can find their free representation suddenly withdrawn because of a lack of resources. Claimants who simply want redress and whose cases involve no issues of wider significance are unlikely to receive any funding other than if they are eligible for legal aid.
The tribunal, then, may not be a viable option for many survivors, despite its advantages of offering open justice and allowing mediation processes to continue alongside tribunal cases.
Office of the Ombudsman
Anyone can ask the Office of the Ombudsman to look into decisions made by government agencies, as well as public sector agencies like district health boards and school boards. Survivors have gone to the Ombudsman about delays or improper decision-making by government agencies on matters of administration. They have also asked the Ombudsman to investigate the length of time government agencies have taken to respond to Official Information Act requests or to examine excessive redactions of material released under these requests. Proposed legislation gives the Ombudsman an enhanced oversight function for decision-making by Oranga Tamariki and an early roll-out of this function has been initiated. The Ombudsman’s powers are mostly limited to making recommendations and the government is not obliged to act on these recommendations. In one such example, sisters Tanya and Georgina Sammons went to the Ombudsman over the Ministry of Social Development’s refusal to consider the redress claim of their deceased sister Alva. The Ombudsman said the ministry should accept and investigate their sister’s claim, but the ministry did not follow this recommendation.
The Ombudsman’s complaints process has taken a long time for some survivors. Survivor Peter Boock asked for a review in 2018 of a decision by Saint Bede’s College in Christchurch to refuse to release documentation about his abuse. The Office of the Ombudsman had to consult with the Privacy Commissioner, and it took over a year for Peter to receive notice that the office would conduct an investigation. Cooper Legal waited for over three years to receive a substantive response on the Ministry of Social Development’s redaction of information and names in survivors’ records. It took more than two years for the Sammons sisters to get a final response to a 2014 claim concerning the Ministry of Social Development’s approach to Alva’s claim. The Office of the Ombudsman told us that a backlog of files was cleared around 2016/17 after it received additional resourcing and other reforms have been made so that delays are no longer an issue. Recommendations of the Ombudsman are not enforceable, even when it forms an opinion that a decision was improper. Survivors have to rely on the willingness of government agencies for any remedy.
The Waitangi Tribunal is a standing commission of inquiry that is available to Māori to make claims relating to a breach of te Tiriti o Waitangi by the Crown. The tribunal’s scope to consider claims is restricted. It cannot decide on a claim if the claimants in all circumstances have an adequate remedy, right of appeal or avenue available to them. The tribunal also no longer has jurisdiction to inquire into any new claim concerning matters that occurred before 21 September 1992. For this reason, Māori survivors of abuse prior to that date are no longer able to bring claims relating to their abuse in care.
Survivors have used this avenue to make claims about redress processes. In 2017, a group of Māori survivors made an application for an urgent inquiry into the Crown’s settlement of historical grievances about Māori children abused in State care. However, in 2019, the tribunal declined to hear the claim urgently on the basis that an inquiry would be an inefficient use of their resources given the Government’s establishment of this inquiry. The tribunal said that claims could be heard as part of a future kaupapa inquiry. No date has been provided for when this might occur.
Crucially, the tribunal is unable to provide remedies itself. With a limited exception, the tribunal can only make non-binding recommendations to the Crown on ways to compensate those affected, remove the prejudice or prevent others from being affected in the future.
Professional disciplinary bodies
Survivors can make a complaint about a perpetrator to the disciplinary arm of the professional body to which the perpetrator is a member – typically the Teaching Council of Aotearoa New Zealand or the Medical Council of New Zealand. Professional disciplinary bodies may be relevant to harm caused by others too – for example a complaint could be made to the New Zealand Law Society about a lawyer who breached professional standards in the way they dealt with a survivor. These bodies can have individuals suspended or banned for breach of professional standards. This may prevent any continuation of abuse. However, making a complaint about a perpetrator can be personally distressing and traumatic. One person told us of a survivor being subjected to a harrowing two-hour cross-examination by their abuser, who was representing themselves.
Office of the Health and Disability Commissioner
The Office of the Health and Disability Commissioner is an independent watchdog and is another avenue for survivors to seek redress. Complaints must relate to failings in the quality of health and disability services. This limited jurisdiction means it can only look into some abuse in care complaints. The Code of Health and Disability Services Consumers’ Rights, which gives the Commissioner much of their jurisdiction, only applies to events after 1 July 1996, excluding many historic claims. Even for serious complaints that come under the Commissioner’s jurisdiction, the Commissioner can choose not to pursue them. For instance, the Commissioner chose not to take any specific action in response to a survivor’s complaint against health practitioners at Lake Alice Hospital between 1973 and 1975 due to previous inquiries on the matter.
If the Commissioner finds there has been a breach of the code, they can make recommendations in response. Recommendations can include requiring a health provider to make an apology, undertake further training, revise policies or carry out audits. The case can also be referred to the Director of Proceedings, who can take a case to the Human Rights Review Tribunal seeking remedies including financial compensation, or referred to the appropriate body to consider a disciplinary prosecution. Simple complaints to the Commissioner are typically dealt with relatively quickly, while more complex cases may take around two years.
Office of the Children’s Commissioner
The Office of the Children’s Commissioner is an independent body that monitors and reports on services provided to children in care. The office’s mandate covers only contemporary, not historic, care settings and it is unable to provide survivors with monetary payments or non-monetary redress. However, through its monitoring services, the office can contribute to one aspect of redress: preventing the reoccurrence of abuse. The office has three areas of monitoring: a statutory responsibility to “monitor and assess” the policies and practices provided under the Oranga Tamariki Act 1989; as a designated “National Preventative Mechanism” under the Crimes of Torture Amendment Act 2003 and having responsibilities for children and young people in detention under the Optional Protocol to the United Nations Convention Against Cruel, Inhuman or Degrading Treatment or Punishment; and overseeing the grievance panel system, Whāia te Māramatanga, used within the nine youth justice and care and protection residences to allow those in these residences to make complaints about their treatment.
As the principal monitor of the Oranga Tamariki system, and through its other monitoring roles, the office is an expert on State monitoring and working with care-experienced young people. This inquiry has received three submissions from the Office of the Children’s Commissioner. The office told us that the full scope of its monitoring functions have been limited by a persistent lack of adequate funding and that this has impacted and restricted its ability to effectively monitor the system. Despite this, it has always focused on care and protection and youth justice residences given that young people in these residences are particularly vulnerable. Oranga Tamariki has no obligation to respond to the office’s recommendations and its monitoring reports are confidential.
Next: 2.7 Access to Records