Appendix

Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions Amendment Order 2020 (LI 2020/118); Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions Amendment Order 2019 (LI 2019/268); Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions Order 2018 (LI 2018/223); Inquiries (Royal Commission of Inquiry into Historical Abuse in State Care) Order 2018 (LI 2018/3).

See clause 6 and 8 of the terms of reference, and Abuse in Care Royal Commission of Inquiry (2020), What we know about the numbers of people in care and the extent of abuse in care, Indicative estimates of people in care and their abuse in care, especially Māori in care, pp4-5, 15-20, and Disabled people in care, pp5-6, 24-28. Note that as explained further at footnote 12 below, we use the term disability and disabled people in this report to include those with a mental illness, although we recognise that some people with mental illnesses do not identify as disabled.

See clause 7 of the terms of reference, and Abuse in Care Royal Commission of Inquiry (2020), What we know about the numbers of people in care and the extent of abuse in care, Pacific people in care, pp5, 20-23.

See footnote 13.

The terms of reference use the term victims/survivors, which recognises that some people who have suffered abuse prefer one term, and that others prefer the other term. Except in occasional instances where context demands otherwise, we have used the word survivor only.

See letter from Sir Anand to Minister of Internal Affairs Tracey Martin, dated 29 May 2018, and appended report on consultation on terms of reference, p4.

General hospital admissions, people in prisons, aged residential and in-home care and immigration detention centres are excluded, unless the person was also in State care at the time. See clause 17.3(e) of the terms of reference.

Generally, we use Te Tiriti to refer to all aspects of Te Tiriti o Waitangi/the Treaty of Waitangi and its principles. Cabinet agreed that the terms of reference would include a preamble that expressly recognises the Treaty of Waitangi and its principles, as well as the status of iwi and Māori under the Treaty of Waitangi. See Cabinet Minute of Decision, Final establishment of the Royal Commission into Historical Abuse in State Care and the Care of Faith-based Institutions (CAB-18- MIN-572.01), at 8.5.

The inquiry may hear from people who were in care at any point after 1999 or are currently in care (regardless of whether they were also in care before 1999). See clause 10.1(c) of the terms of reference.

See clause 26.1 and 26.2 of the terms of reference.

For our purposes, people with disabilities means those with long-term physical, sensory, mental and/or intellectual impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others. This includes people experiencing long-term mental distress or psycho-social disability, survivors of psychiatric care, deaf people, people with a neurological disability such as dyslexia, Attention Deficit Hyperactivity Disorder, autism, head injury, foetal alcohol syndrome, and people with an intellectual disability (who prefer the term learning disability).

MartinJenkins (2020), Indicative estimates of the size of cohorts and levels of abuse in State and faith-based care 1950 to 2019 (unpublished), p8. The inquiry commissioned this report to help estimate the number of people in care, to meet the requirement to provide an analysis of the size of cohorts for direct and indirect State care and care in faith-based institutions under clause 35.1(b) of the terms of reference. See also pp59-60 for more discussion on this report and the limitations of the estimates. See also Abuse in Care Royal Commission of Inquiry (2020), What we know about the numbers of people in care and the extent of abuse in care, Indicative estimates of people in care and their abuse in care, p4.

See, for example, the statement of Sonja Cooper and Amanda Hill for the contextual hearing, 5 September 2019, p48, and also the submission of the Network of Survivors of Abuse in Faith-Based Institutions and their Supporters, (6 April 2018, p7: “Abuse is ongoing and happening now and we have faith-based victims and survivors telling us of their abuse now. The Network has clear and compelling evidence of this.” See also the statement of Children’s Commissioner Judge Andrew Becroft for the contextual hearing, 6 October 2019, p14 describing “a continuing picture of State abuse of children and young people in care”. See also Abuse in Care Royal Commission of Inquiry (2020), What we know about the numbers of people in care and the extent of abuse in care, pp12-14, 29-32, for information on current levels of people in care and being abused in care.

See Abuse in Care Royal Commission of Inquiry (2020), What we know about the numbers of people in care and the extent of abuse in care, Summary of findings, pp4-5.

Department of Social Welfare (1988), Puao-te-Ata-tu (day break): The Report of the Ministerial Advisory Committee on a Māori Perspective for the Department of Social Welfare, Wellington, p7; Human Rights Commission (1982), Children andvYoung Persons Homes, Administered by The Department of Social Welfare, pp123- 124; Children’s Commissioner (2020), Report of the Children’s Commissioner in the matter of the Oranga Tamariki Urgent Inquiry (Wai 2915), pp8-13; Whānau Ora Commissioning Agency (2020), Ko Te Wā Whakawhiti, It’s Time for Change: A Māori Inquiry into Oranga Tamariki, Wellington, pp 21, 32-34, 62-74.

Oranga Tamariki – Ministry for Children, Safety of children in care, Annual Report 2018-19, p18. This includes those that are recorded as having either Māori or Māori and Pacific ethnicity.

See Abuse in Care Royal Commission of Inquiry (2020), What we know about the numbers of people in care and the extent of abuse in care, Indicative estimates of the number of people who may have been abused in care, pp31-32.

See Abuse in Care Royal Commission of Inquiry (2020), What we know about the numbers of people in care and the extent of abuse in care, Pacific people in care, pp5, 20.

See statement of Professor Michael Tarren-Sweeny for the contextual hearing, 24 October 2019, p3 and Gluckman (2018), Using evidence to build a better justice system: The challenge of rising prison costs.

Statement of Professor Michael Tarren-Sweeny for the contextual hearing, 24 October 2019, p3.

See the statement of Professor Tracey McIntosh for the contextual hearing, 15 October 2019, p20; statement of Judge Carolyn Henwood for the contextual hearing, 28 October 2019, p15; statement of Professor Elizabeth Stanley for the contextual hearing, 11 October 2019, p13; and statement of Arthur Taylor for the contextual hearing, 3 October 2019, paras 3 and 62. We will continue our consideration of the relationship between people being in care and their later experience of the criminal justice or correctional systems, in light of the terms of reference – clause 17.3(f).

Statement of Sonja Cooper and Amanda Hill for the State redress hearing, 31 January 2020, p264.

MartinJenkins (2020), Economic cost of abuse in care, p3. See further discussion on p95.

The reckoning podcast, episode 1: Mike Ledingham, 17 September 2019: https:// www.thereckoning.nz/mike-ledingham interview/.

Statement of Annasophia Calman for the contextual hearing, October 2019, p6.

See Concluding Observations of the Committee Against Torture, CAT/C/NZL/CO/5, 4 June 2009, p5, para 11.

See Wright, K, Swain, S and Sköld, J, The Age of Inquiry: A global mapping of institutional abuse inquiries, 2020, Melbourne: La Trobe University. They include Australia (the Royal Commission into Institutional Responses to Child Abuse, 2013-2017, and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 2019-present), England and Wales (the Independent Inquiry into Child Sexual Abuse, 2014-present), Scotland (the Scottish Child Abuse Inquiry, 2015-present) and Northern Ireland (the Northern Ireland Historical Institutional Abuse Inquiry, 2014-2016), among others.

See Confidential Forum (2007), Te Āiotanga: Report of the Confidential Forum for Former In-Patients of Psychiatric Hospitals.

See Confidential Listening and Assistance Service (2015), Some memories never fade: Final report of the Confidential Listening and Assistance Service.

Auckland Committee on Racism and Discrimination, Ngā Tamatoa and Arohanui Inc (1978), Social Welfare children’s homes: Report on an Inquiry held on June 11 1978.

Human Rights Commission (1982), Children and Young Persons Homes, Administered by The Department of Social Welfare.

Statement of Rosslyn Noonan for the contextual hearing, 4 November 2019, appendix 1: New Zealand Human Rights Commission Report, draft as at August 2011, Review of the State’s Response to Historic Claims of Abuse and Mistreatment Suffered While Under the Care of the State, at para 1.14: “More than 16 inquiries were held into Auckland mental hospitals between 1969 and the landmark 1988 Mason Report. The reports identified various shortcomings in the institutions. A second Mason Report in 1996 identified six further Inquiries of national significance between 1988 and 1996.”

Human Rights Commission, Review of the State’s Response to Historic Claims of Abuse and Mistreatment Suffered While Under the Care of the State, draft as at August 2011, annexed to statement of Rosslyn Noonan for the contextual hearing, 4 November 2019, appendix 1.

Department of Social Welfare (1988), Puao-te-Ata-tu (day break): The Report of the Ministerial Advisory Committee on a Māori Perspective for the Department of Social Welfare, Wellington, p7.

See https://dpmc.govt.nz/our-business-units/cabinet-office/supporting-work- cabinet/cabinet-manual/4-ministers-law-and-6.

Under the Inquiries Act 2013, an inquiry may conduct its inquiry as it considers appropriate, unless otherwise specified by the Act or its terms of reference (section 14(1)(a) and (b)). Not all public inquiries must operate in public (section 15(1)(b) and (c)).

Submission of the Network of Survivors of Abuse in Faith-Based Institutions and their Supporters on draft terms of reference of Royal Commission of Inquiry into Historical Abuse in State Care, 16 April 2018, p17, para 5.0.

For example ibid, p10, para 3.32: “The Senior Counsel Assisting must be permitted to investigate the institutions in which abuse took place, particularly as this abuse was unquestionably criminal. This requires expert questioning and prosecutorial skills associated with the Senior Counsel Assisting role. To merely help direct victims and survivors in their testimony without concomitant questioning of the institutions which criminally assaulted them, renders the role of Senior Counsel Assisting pointless as his special skills will remain unused. The professed desire to prevent future abuse will not be attainable.”

The terms of reference also identify principles to guide our work – see clause 18, 19.

See, for instance, Walker, R (2004), Ka Whawhai Tonu Matou: Struggle Without End, Auckland; Anderson, A, Binney, J, Harris, A (2014), Tangata Whenua: An Illustrated History, Wellington.

Whānau Ora Commissioning Agency (2020), Ko Te Wā Whakawhiti, It’s Time for Change: A Māori Inquiry into Oranga Tamariki, Wellington.

See, for example, Waitangi Tribunal (2014), He Whakaputanga me te Tiriti: The Declaration and the Treaty, Wellington, p528; Waitangi Tribunal (1987), Report of the Waitangi Tribunal on the Orakei Claim, Wellington; Waitangi Tribunal (2008), He Maunga Rongo, vol 1, Wellington, pp166, 191.

See clause 20(d) of the terms of reference.

Waitangi Tribunal, Wai 2915, Oranga Tamariki Urgent Inquiry.

Whānau Ora Commissioning Agency (2020), Ko Te Wā Whakawhiti, It’s Time for Change: A Māori Inquiry into Oranga Tamariki, Wellington.

See first report: Office of the Children’s Commissioner (2020), Te Kuku O Te Manawa: Ka puta te riri, ka momori te ngākau, ka heke ngā roimata mo tōku pēpi.

Chief Ombudsman Investigation into policies, practices and procedures for the removal of newborn pēpi by Oranga Tamariki, Ministry for Children – see the report He Take Kōhukihuki, A Matter of Urgency, August 2020.

Government Inquiry into Mental Health and Addiction – see the report He Ara Oranga, November 2018.

Australian Royal Commission into Institutional Responses to Child Sexual Abuse – see the Final Report (2017).

Truth and Reconciliation Commission of Canada, inquiring into the experience of Aboriginal children at residential schools (2015).

Independent Inquiry into Child Sexual Abuse (England and Wales) (current).

Scottish Child Abuse Inquiry (current).

Historical Institutional Abuse Inquiry (Northern Ireland) (2017).

The Commission to Inquire into Child Abuse (Ireland) (2009).

Clause 20(d) of the terms of reference.

If we intend sharing confidential information, we work in accordance with the Tukutuku/Private Session Information: Self-incrimination Policy, which sets out the exceptions to the otherwise strict preservation of confidentiality of information we comply with.

Memorandum of Understanding, Department of Corrections and The Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith- Based Institutions, 7 June 2019.

Memorandum of Understanding, New Zealand Police and The Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions, 21 October 2019.

Memorandum of Understanding, VOYCE Whakarongo Mai and The Royal Commission of Inquiry into Historical Abuse in State Care and the Care of Faith- Based Institutions, 12 March 2020.

See Messages to Aotearoa New Zealand on our website.

Memorandum of Understanding, Department of Corrections and The Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith- Based Institutions, 7 June 2019.

The preamble to the terms of reference recognise that the matter of abuse in care “now requires thorough, effective investigation and review”; and clause 4 notes the need for “prompt and impartial investigation and examination” of abuse in care.

See Practice Note 1 – Legal assistance funding for activities set out in schedule 1, 4 December 2019, published on our website.

We have a research and ethics approval process to ensure all primary research we undertake or commission is relevant, suited to its intended purpose and ethical. The approval process involves reputable academics, such as Māori, Pacific, disability and social sciences experts.

See Volume 2 of this report, Survivor voices: an analysis.

See Abuse in Care Royal Commission of Inquiry (2020), What we know about the numbers of people in care and the extent of abuse in care, Indicative estimates of people in care and their abuse in care; and MartinJenkins (2020), Indicative estimates of the size of cohorts and levels of abuse in State care and faith-based care 1950 to 2019. More definitive estimates will be included in our final report.

MartinJenkins (2020), Economic cost of abuse in care: Scoping of approach and high-level estimate.

See clause 32 of the terms of reference.

Ableism is attitudes and policies that discriminate in favour of able-bodied people.

Clause 23 of the terms of reference requires us to “establish an advisory group or groups comprising survivors of abuse in State care and in the care of faith-based institutions that, from time to time, will provide assistance to inquiry members”.

We have held four fono, attended by 100 Pacific individuals and organisations in Auckland and Wellington.

We have produced five such videos, which were shared on our Facebook page and have reached about 7,500 people.

According to the report, faith-based settings and social welfare settings accounted for the largest cohorts at over 254,000 people in each setting (each about 31 per cent of the total); followed by health and disability settings at 212,000 people (26 per cent); and education care settings at 102,000 people (12 per cent). The totals were then adjusted to account for the overlap among settings, to reflect the fact that many people passed through two or more settings. See MartinJenkins (2020), Indicative estimates of the size of cohorts and levels of abuse in state care and faith-based care 1950 to 2019, pp5-6.

Of these, the report estimates that up to approximately 84,000 were abused in faith-based care, and up to approximately 172,000 were abused in State care: see MartinJenkins (2020), Indicative estimates of the size of cohorts and levels of abuse in state care and faith-based care 1950 to 2019, p43.

The MartinJenkins report only examined a subset of the full range of settings in the inquiry’s terms of reference. The report examined youth justice facilities and residences, state wards in care and protection residences, foster care and other placements, special schools, regional health schools, and non-religious boarding schools, psychiatric hospitals and facilities, faith-based residences, children’s homes, orphanages and foster homes, faith-based residential disability care settings and faith-based boarding schools. It did not consider the wider category of all schools, and also did not include numbers of people who attended health camps, non-residential psychiatric facilities, residential and non-residential disability facilities, youth camps, and people held in transition in police or court cells, or within wider or pastoral care faith-based settings. The estimate of the number of people abused used modelling from New Zealand and overseas studies to extrapolate possible abuse figures. There are gaps in the data, and overseas studies are influenced by cultural, social, policy and legislative factors that are different to those applicable in New Zealand. Systems of providing care in New Zealand are also different to those available overseas.

Those interested in a fuller explanation of the work done, and its limitations, are referred to the separate reports published on our website: MartinJenkins (2020), Indicative estimates of the size of cohorts and levels of abuse in state care and faith-based care 1950 to 2019. A summary of this report in the wider context of available literature is also contained in the Abuse in Care Royal Commission of Inquiry (2020), What we know about the numbers of people in care and the extent of abuse in care (also published on our website).

These are the figures as at late August 2020. For full detail, see Abuse in Care Royal Commission of Inquiry (2020), What we know about the numbers of people in care and the extent of abuse in care, Registrations with the Royal Commission of Inquiry, Table 3: Registered survivors by registration type, care setting, gender, ethnicity, and age, p34.

This section draws on the analysis of available information contained in the separately published research report on what we know about the number of people in care and the extent of abuse in care. For full references for information cited in this section, see Abuse in Care Royal Commission of Inquiry (2020), What we know about the numbers of people in care and the extent of abuse in care, Māori in care, pp15-20.

JK Hunn (1961), Report on Department of Maori Affairs, Wellington; Te Puni Kōkiri (1998), Progress towards closing social and economic gaps between Māori and non-Māori, Wellington; Te Puni Kōkiri (2000), Progress towards closing social and economic gaps between Māori and non-Māori, Wellington.

Statement of Sir Kim Workman for the contextual hearing, 5 October 2019, p10.

Ibid, pp10-12; and statement of Dr Oliver Sutherland for the contextual hearing, 4 October 2019, pp1-2.

In 1969, 70 per cent of residents of the Ōwairaka Boys’ Home were “Polynesian” and in 1978, 80 percent were described as “Polynesian, mainly Māori”: Human Rights Commission (1992), Who cares for the kids?: A study of children and young people in out-of-family care, p219.

See also Te Kani Kingi et al (2018), Maea Te Toi Ora, Māori Health Transformations, p13. First-time admissions to psychiatric facilities increased only slightly among non-Māori between 1960 and 1990, but the corresponding rate for Māori during the same period was more than 200 per cent.

Oranga Tamariki Quarterly Report, June 2020.

Office of the Children’s Commissioner (2019), Infographic – Pēpi Māori 0-3 months and the care and protection system.

Oranga Tamariki – Ministry for Children (2019), Safety of children in care, Annual Report 2018-19, p18. This includes those that are recorded as having either Māori or Māori and Pacific ethnicity. We note that these numbers fluctuate between different reporting periods.

See, for example, the witness statement of Fa’afete Taito for the contextual hearing, 24 September 2019, p7. There was also general underreporting of Pacific ethnicity in census data in the 1970s because of fears of deportation due to overstaying: see Abuse in Care Royal Commission of Inquiry (2020), What we know about the numbers of people in care and the extent of abuse in care, Demographic change in Aotearoa New Zealand, p11.

Transcript of evidence of Fa’afete Taito at the contextual hearing, 4 November 2019, pp639, 651-652.

We note that if compared to a proportion of Pacific youth in just Auckland, the number in these Auckland residences may not be as out of proportion.

Residential schools for children with a learning disability also reported high numbers of Māori and Pacific students. In 1984, Campbell Park had 57 per cent Māori and Pacific, and Salisbury Girls School had 51 per cent Māori and Pacific.

The study of how to rearrange reproduction within a human population to increase the occurrence of heritable characteristics regarded as desirable.

Statement of Dr Hilary Stace for the contextual hearing, 20 September 2019.

Statement of Sir Robert Martin for the contextual hearing, p2.

Transcript of evidence of Sir Robert Martin at the contextual hearing, 5 November 2019, p697.

Transcript of evidence of Trish Grant at the State redress hearing, 28 September 2020, p314.

Similarly, the majority of claimants with the Ministry of Social Development are male; 71 per cent compared to 28 per cent female: see statement of Simon MacPherson for the State redress hearing, p22.

100

Transcript of evidence of Sonja Cooper and Amanda Hill at the State redress hearing, 29 September 2020, p 375; statement of Professor Elizabeth Stanley for the contextual hearing, 11 October 2019, p9; statement of Dr Oliver Sutherland for the contextual hearing, 15 October 2019, pp17-18. See also the Human Rights Commission (1982), Children and Young Persons Homes, Administered by The Department of Social Welfare, pp17-18, 85.

101

See, for example, statement of Dr Hilary Stace for the contextual hearing, p10; Confidential Forum (2007), Te Āiotanga: Report of the Confidential Forum for Former In-Patients of Psychiatric Hospitals, p33; Hamilton C (2012), Sterilisation and intellectually disabled people in New Zealand – still on the agenda?, Kotuitui: New Zealand Journal of Social Sciences Online, 7(2), pp61-71; Mirfin-Beitch B & Conder J (2017), Institutions are places of abuse: The experiences of disabled children and adults in State care between 1950 and 1992, Donald Beasley Institute.

102

Statement of Professor Elizabeth Stanley for the contextual hearing, 11 October 2019, p16.

103

Statement of Dr Oliver Sutherland for the contextual hearing, p9.

104

Stanley (2016), Road to Hell, p67.

105

Statement of Beverly Wardle-Jackson for the contextual hearing, 7 November 2019, p11.

106

Ibid, p8.

107

Adoption placements are within the meaning of State care under clause 17.3(c)(i)

(B) of the terms of reference. Women and girls may have also themselves been in care when adopting out their children.

108

Maria Haenga Collins (2011), Belonging and Whakapapa: the closed stranger adoptions of Māori children into Pākehā families; Anne Else (1991), A Question of Adoption: closed stranger adoption in New Zealand, 1944-1974, Wellington.

109

Ibid.

110

Statement of Dr Alison Green for the contextual hearing, p2.

111

Statement of Dr Anne Else for the contextual hearing, p8.

112

Statement of Judge Carolyn Henwood for the contextual hearing, 28 October 2019, pp14-15.

113

Volume 2 – Survivor voices: an analysis, p9.

114

Statement of James Packer for the State redress hearing, 14 February 2020, p3.

115

Transcript of evidence of Cheryl Munro at the State redress hearing, 21 September 2020, p17.

116

Statement of Leoni McInroe for the State redress hearing, 31 July 2020.

117

Transcript of evidence of Joan Bellingham at the State redress hearing, 23 September 2020, p60.

118

Clause 17.1 of the terms of reference.

119

See most recent views of the United Nations Committee Against Torture: Zentveld v New Zealand CAT/C/68/D/852/2017 (2019), p15. Because New Zealand did not contest that what was alleged would amount to torture, the focus of the report was on whether New Zealand had provided sufficient remedy. See also concluding observations on the fifth periodic report of New Zealand, CAT/C/NZL/CO/5 (2009).

120

Third parties provided programmes under the Child Welfare Act 1925, the Children and Young Persons Act 1974 and the Oranga Tamariki Act 1989.

121

Clause 17.3 of the terms of reference.

122

Clause 17.3(a) and 17.3(b) of the terms of reference.

123

See, for example, the statement of Dr Oliver Sutherland for the contextual hearing, 4 October 2019, p14.

124

See, for example, Stanley (2016), The Road to Hell, pp113-115.

125

Statement of Beverly Wardle-Jackson for the contextual hearing, 7 November 2019, p6.

126

Statement of Dr Oliver Sutherland for the contextual hearing, 4 October 2019, p15.

127

See, for example, the statement of Beverly Wardle-Jackson for the contextual hearing, 7 November 2019, p2; statement of Sir Robert Martin for the contextual hearing, p4; statement of Professor Elizabeth Stanley for the contextual hearing, 11 October 2019, p3.

128

See Stanley (2016), Road to Hell, p116.

129

As also documented by Sir Rodney Gallen, in his Report on the Lake Alice Incidents (2001), pp6-8.

130

As cited in statement of Mary O’Hagan for the contextual hearing, 14 October 2019, p17.

131

Confidential Listening and Assistance Service (2015), Some memories never fade: Final report of the Confidential Listening and Assistance Service, p29.

132

As cited in statement of Mary O’Hagan for the contextual hearing, 14 October 2019, p18.

133

Transcript of evidence of Joan Bellingham at the State redress hearing, 22 September 2020, p61.

134

See most recent views of the United Nations Committee Against Torture: Zentveld v New Zealand CAT/C/68/D/852/2017 (2019), p15. See also concluding observations on the fifth periodic report of New Zealand, CAT/C/NZL/CO/5 (2009).

135

For example, the Ministry of Social Development’s review of Ōwairaka noted that one boy was held in secure for 108 days during 1985: Ministry of Social Development (2006), Social Welfare Residential Care 1950-1994: Volume III – A Selection of Boys’ and Girls’ Homes, p35.

136

Human Rights Commission (1982), Children and Young Persons Homes, Administered by The Department of Social Welfare, p23. See also statement of Dr Oliver Sutherland for the contextual hearing, 4 October 2019, pp12-13.

137

See Shalev, S (2017), Thinking Outside the Box: a review of seclusion and restraint practices in New Zealand, Human Rights Commission; and reports released in August 2020 by the Chief Ombudsman on five mental health units.

138

Transcript of evidence of Professor Elizabeth Stanley at the contextual hearing, 4 November 2019, p660.

139

Transcript of evidence of Dallas Pickering at the contextual hearing, 5 November 2019, p767.

140

Statement of Annasophia Calman for the contextual hearing, October 2019, p4.

141

Transcript of evidence of Sonja Cooper and Amanda Hill at the State redress hearing, 29 September 2020, p377; statement of Professor Elizabeth Stanley for the contextual hearing, 11 October 2019, p9; statement of Dr Oliver Sutherland for the contextual hearing, 15 October 2019, pp17-18. See also the Human Rights Commission (1982), Children and Young Persons Homes, pp17-18; Sutherland (2020), Justice and Race, pp100, 113.

142

Statement of Mike Ledingham for the contextual hearing, October/November 2019, p5.

143

See, for example, statement of Keith Wiffin for the State redress hearing, 12 February 2020, p2; and statement of Earl White for the State redress hearing, 15 July 2020, p7.

144

See statement of Arthur Taylor for the contextual hearing, 3 October 2019, p10; Confidential Listening and Assistance Service (2015), Some memories never fade: Final report of Confidential Listening and Assistance Service, p30; and Confidential Forum (2007), Te Āiotanga: Report of the Confidential Forum for Former In- Patients of Psychiatric Hospitals, p21.

145

Statement of Sir Robert Martin for the contextual hearing, p12.

146

Transcript of evidence of Gay Rowe at the State redress hearing, 29 September 2020, p343.

147

Statement of Keith Wiffin for the contextual hearing, 29 October 2019, p2.

148

Statement of Ann-Marie Shelley, 6 August 2020, p8.

149

Statement of Arthur Taylor for the contextual hearing, 3 October 2019, p5.

150

Statement by Dallas Pickering for the contextual hearing, 21 October 2019, p4.

151

Family homes were homes in which many children in State care would be placed, often together with the children of the supervising parents, for periods of time.

152

Transcript of evidence of Chassy Duncan at the State redress hearing, 23 September 2020, p88.

153

Statement of Dallas Pickering for the contextual hearing, 21 October 2019, p3.

154

Statement of Professor Elizabeth Stanley for the contextual hearing, 11 October 2019, p8.

155

Statement of Annasophia Calman for the contextual hearing, October 2019, p 3.

156

Transcript of evidence of Sir Robert Martin at the contextual hearing, 5 November 2019, p697.

157

Transcript of evidence of Beverly Wardle-Jackson at the contextual hearing, 6 November 2019, p896; and statement of Beverly Wardle-Jackson for the contextual hearing, 7 November 2019, p2.

158

Statement of Professor Elizabeth Stanley for the contextual hearing, 11 October 2019, p3.

159

Statement of Arthur Taylor for the contextual hearing, 3 October 2019, p6.

160

Transcript of evidence of Professor Elizabeth Stanley at the contextual hearing, 4 November 2019, p660.

161

Statement of Dr Oliver Sutherland for the contextual hearing, 4 October 2019, p15.

162

For example, see statement of Beverly Wardle-Jackson for the contextual hearing, 7 November 2019, p4; and statement of Dr Oliver Sutherland for the contextual hearing, 4 October 2019, pp11 and 16.

163

Statement of Dr Brigit Mirfin-Veitch for the contextual hearing, p8.

164

Statement of Professor Elizabeth Stanley for the contextual hearing, 11 October 2019, p5.

165

Transcript of evidence of Beverly Wardle-Jackson at the contextual hearing, 6 November 2019, p906; and statement of Beverly Wardle-Jackson for the contextual hearing, 7 November 2019, p9.

166

Stanley (2016), Road to Hell, pp37-38. See also Abuse in Care Royal Commission of Inquiry (2020), What we know about the numbers of people in care and the extent of abuse in care, Māori in care, p17.

167

Fareham housed about 40 young girls, but stopped admitting only Māori in about 1963.

168

Statement of Professor Elizabeth Stanley for the contextual hearing, 11 October 2019, p7.

169

Ibid.

170

Dalley, B (1998), Family Matters: Child Welfare in Twentieth-century New Zealand, p238.

171

For example, see statement of Sir Kim Workman for the contextual hearing, 5 October 2019, pp6 and 12. He told us that “the future of Māori and Pasifika children was left largely in the hands of Pākehā officials”. He noted, for example, that there were very few Māori staff at Kohitere Boys’ Training Centre, despite the fact that about 80 per cent to 90 per cent of those sent there were Māori. See also the Mason Report (1988), which found there was sometimes a lack of a Māori perspective on, and whānau input into, admitting and treating Māori patients in psychiatric facilities.

172

Dalley, B (1998), Family Matters: Child Welfare in Twentieth-century New Zealand, p238; Else, A (1991), A question of adoption. Hill, RS (2009), Maori and the State: Crown Maori relations in New Zealand/Aotearoa 1950-2000, p34.

173

Statement of Fa’afete Taito for the contextual hearing, 24 September 2019, p8.

174

Statement of James Packer for the State redress hearing, 13 February 2020, p2.

175

Statement of Sir Robert Martin for the contextual hearing, p9.

176

Statement of Dr Brigit Mirfin-Veitch for the contextual hearing, p5.

177

Transcript of evidence of Sir Robert Martin at the contextual hearing, 5 November 2019, p699.

178

Transcript of evidence of Sir Robert Martin at the contextual hearing, 5 November 2019, p702 and statement of Sir Robert Martin for the contextual hearing, p14.

179

Statement of Sir Robert Martin for the contextual hearing, p15.

180

For example, in relation to children with learning disability and neurodiversity, see Mirfin-Veitch & Conder (2017), Institutions are places of abuse: The experiences of disabled children and adults in State care between 1950-1992, Donald Beasley Institute.

181

Statement of Beverly Wardle-Jackson for the contextual hearing, 7 November 2019, pp1-13.

182

Statement of Chassy Duncan for the State redress hearing, 24 February 2020, pp3-4.

183

Statement of Kerry Johnson for the State redress hearing, February 2020, pp2-3.

184

See, for example, statement of Dallas Pickering for the contextual hearing, pp2-3; and statement of Beverly Wardle-Jackson for the contextual hearing, 7 November 2019, p4; Volume 2 – Survivor voices: an analysis, p29.

185

See, for example, Carr, A, Duff, H, & Craddock, F (2018), A systematic review of the outcome of child abuse in long-term care.

186

Ibid; and Katz, I, Jones, A, Newton, BJ, & Reimer, E (2017), Life journeys of victim/ survivors of child sexual abuse in institutions: An analysis of Royal Commission private sessions.

187

Statement of Professor Michael Tarren-Sweeney for the contextual hearing, 8 November 2019, p3.

188

Blakemore, T, Herbert, JL, Arney, F, & Parkinson, S (2017), The impacts of institutional child sexual abuse: A rapid review of the evidence, Child Abuse and Neglect, pp74, 35-48; Commonwealth of Australia, (2004), Forgotten Australians: A report on Australians who experienced institutional or out-of-home care as children.

189

Statement of Arthur Taylor for the contextual hearing, 3 October 2019, pp1-2.

190

Transcript of evidence of Tanya and Georgina Sammons at the State redress hearing, 25 September 2020, p193.

191

Transcript of evidence of Cheryl Munro (on behalf of James Packer) at the State redress hearing, 21 September 2020, p20.

192

See Volume 2 – Survivor voices: an analysis, p61.

193

Ibid, p61.

194

Statement of Anne Hill, 28 September 2020, p9.

195

Confidential Listening and Assistance Service (2015), Some memories never fade: Final report of the Confidential Listening and Assistance Service; Carr, A, Duff, H, & Craddock, F (2018), A systemic review of the outcome of child abuse in long-term care.

196

Carr, A, Duff, H, & Craddock, F (2018), A systemic review of the outcome of child abuse in long-term care; Blakemore, T, Herbert, LJ, Arney, F, & Parkinson, S (2017), The impacts of institutional child sexual abuse: A rapid review of the evidence.

197

See Volume 2 – Survivor voices: an analysis, pp51-52.

198

Carr, A, Duff, H, & Craddock, F (2018), A systemic review of the outcome of child abuse in long-term care.

199

See statement of Dr Charlene Rapsey for the contextual hearing, 30 October 2019, p4 and associated sources.

200

Statement of Fa’afete Taito for the contextual hearing, 24 September 2019, p8.

201

Statement of Fa’afete Taito for the contextual hearing, 24 September 2019, pp7-8.

202

Ibid, p7.

203

Volume 2 – Survivor voices: an analysis, p56.

204

Ibid, p59.

205

See, for example, Lowenstein, K, (2018), Shutting down the trauma to prison pipeline: Early, appropriate care for child-welfare involved youth; Taylor, C & Fitzpatrick, C (2006), Young people in care and criminal behaviour, Jessica Kingsley Publishers.

206

Volume 2 – Survivor voices: an analysis, p56.

207

Statement of Tanya and Georgina Sammons for the State redress hearing, 24 February 2020, p9.

208

See, for example, statement of Dr Rawiri Waretini-Karena for the contextual hearing.

209

Transcript of evidence of Hope Curtin at the State redress hearing, 25 September 2020, pp217-218.

210

See the statement of Professor Tracey McIntosh for the contextual hearing, 15 October 2019.

211

Statement of Sonja Cooper and Amanda Hill for the State redress hearing, 31 January 2020, p265.

212

MartinJenkins (2020) Economic cost of abuse in care, p3. The estimate of total cost is based on the estimate of the number of people abused as calculated in MartinJenkins (2020), Indicative estimates of the size of cohorts and levels of abuse in State and faith-based care 1950 to 2019.

213

Statement of Joan Bellingham for the State redress hearing, 25 February 2020, pp7-8.

214

Transcript of evidence of Gay Rowe at the State redress hearing, 29 September 2020, p343.

215

Statement of Ann-Marie Shelley, 6 August 2020, p2.

216

Transcript of evidence of Earl White at the State redress hearing, 24 September 2020, p128.

217

See clause 17.6 of the terms of reference. In international human rights law, States have obligations to provide effective remedies for human rights violations: for example, Universal Declaration of Human Rights, art 8; International Covenant on Civil and Political Rights, art 2(3); Convention on the Elimination of All Forms of Racial Discrimination, art 6; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art 14; and the United Nations Declaration on the Rights of Indigenous Peoples, art 40. Each of these obligations may apply to some cases of abuse in care, which will be discussed more fully in the full redress report. Remedies must be accessible and effective, and take into account special vulnerabilities, for example of children (see CCPR/C/21/Rev.1/Add. 13 (2004) at [15]). The United Nations has set out that redress for such violations can include measures such as compensation, rehabilitation, a public apology or memorial, creating a public record about what happened, investigations and prosecutions for accountability, and structural reforms: see the Basic Principles and Guidelines on the Right to a Remedy and Reparation, proclaimed by the UN General Assembly. For New Zealand, redress also includes concepts from te ao Māori.

218

Until 2012, claims relating to abuse in healthcare settings were generally made to the Crown Health Financing Agency, rather than the Ministry of Health. The ministry was responsible for monitoring CHFA. For the purposes of this report, we include reference to these claims when we refer to claims made to the Ministry of Health.

219

This does not include claims that have been made directly to other services such as ACC. Four-fifths of the 5,117 claims have been made to the Ministry of Social Development, which received 4,177 claims between 2003 and 30 June 2020. Oranga Tamariki received 19 claims relating to abuse in care that occurred before 2017. The Ministry of Education received 177 claims between 2010 and October 2020 (and a “small number” of direct claims prior to 2010), and the Ministry of Health received more than 773 claims up to 30 November 2019 (including 336 claims made to the Crown Health Financing Agency, and 185 Lake Alice claimants).

220

Supplementary statement of Linda Hrstich-Meyer for the State redress hearing, 31 July 2020, p6.

221

Of the 5,117 claims, 2,743 remain outstanding. Ministry of Education has closed 46 of 177 (see transcript of evidence of Helen Hurst at the State redress hearing, 28 October 2020, p735); Oranga Tamariki has resolved 11 of their 19 (see transcript of evidence of Steven Groom at the State redress hearing, 27 October 2020, pp616– 617); the Ministry of Social Development had closed 1,942 of its 4,177 claims by 30 June 2020 (see supplementary statement of Linda Hrstich-Meyer for the State redress hearing, 31 July 2020, pp5-6); and the Ministry of Health had closed 744 claims (including 185 Lake Alice claims, 336 claims closed by the Crown Health Financing Agency, and 223 claims made to Ministry of Health – see statement of Philip Knipe for the State redress hearing, pp16 and 23).

222

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Zentveld v New Zealand CAT/C/68/D/852/2017 (2019).

223

Statement of Leoni McInroe for the State redress hearing, 31 July 2020, p2.

224

Transcript of evidence of Una Jagose at the State redress hearing, 3 November 2020, p1069.

225

Possible defences also include bars under the accident compensation legislation, and immunity under the Mental Health Act 1969, as well as principles of vicarious liability.

226

See S v Attorney-General [2003] 3 NZLR 450 (CA); W v Attorney-General CA 227/02 15 July 2003.

227

The accident compensation scheme provides cover for personal injuries, including mental injuries caused by sexual offences. Where cover is available, the person cannot bring a claim in court for compensatory damages.

228

In general, the Limitation Act 1950 has applied to the majority of these claims. The defence is available where more than two years has passed from the date of the relevant event causing bodily injury, or from the time the person has reached 20 years old, though this period can be extended to six years with leave of the court. It is subject to some exceptions if the claimant can show that he or she was under a disability that prevented him or her from bringing the claim earlier. In some cases, the time period may also run from a later date if the claimant can show that the harm they suffered could only have been reasonably discovered at that later date.

229

The Mental Health Acts 1935 and 1969 provided immunity for acts done in pursuance of the provisions of Acts, unless the person acted in bad faith or without reasonable care. They also provided a time limit of six months for bringing such actions.

230

Transcript of evidence of Una Jagose at the State redress hearing, 2 November 2020, p1025.

231

Transcript of evidence of Earl White at the State redress hearing, 24 September 2020, p146.

232

Transcript of evidence of Keith Wiffin at the State redress hearing, 21 September 2020, p27.

233

The government did create some external processes, such as the Confidential Forum for Former In-Patients of Psychiatric Hospitals and Confidential Listening and Assistance Service, but these had no powers to investigate or assess claims, offer apologies or make settlements. Both have been discontinued.

234

We note that some processes, such as that administered by the Ministry of Social Development’s historic claims unit, were set up earlier than 2008, but were developed in response to the wider scope to settle claims under the 2008 revised litigation strategy.

235

See Historic abuse – make a claim, Ministry of Social development, n.d.: https:// www.msd.govt.nz/about-msd-and-our-work/work-programmes/historic-claims/.

236

See Sensitive claims of abuse in state schools, Ministry of Education, last reviewed: 08 October 2020 https://education.govt.nz/our-work/contact-us/ regional-ministry-contacts/learning-support-services/historic-claims-for-abuse- or-neglect-at-a-residential-special-school/.

237

For example, a claim against the Ministry of Social Development today can result in a payment of $55,000 in a case of chronic and serious sexual and physical abuse, while equivalent abuse suffered in the care of the Ministry of Health can result in only a “wellness payment” of up to $9,000.

238

We are advised that Oranga Tamariki has one active contemporary claim.

239

The Ministry of Social Development has very recently released a more comprehensive document showing the considerations, following intervention from the Ombudsman: see the Ministry’s Historic Claims Business Process and Guidance, September 2020. However, there is very little available information from the Ministry of Health or Ministry of Education.

240

Statement of James Packer for the State redress hearing, 13 February 2020, p13.

241

Statement of Joan Bellingham for the State redress hearing, 25 February 2020, p11.

242

We are advised there was previously information on the website about how to make a complaint.

243

See www.orangatamariki.govt.nz.

244

Transcript of evidence of Brett Dooley and David Howden at the State redress hearing, 29 October 2020, p843.

245

Ibid at p869. Ninety-three were reinstated, and nine further claimants made fresh applications for legal aid which were granted.

246

Ibid, p864.

247

Transcript of evidence of Linda Hrstich-Meyer at the State redress hearing, 23 October 2020, p474-475.

248

Statement of Linda Hrstich-Meyer for the State redress hearing, 27 January 2020, p8; and statement of Garth Young for the State redress hearing, 31 July 2020, p23. For a period ‘wellness payments’ were also made for claimants who wished to discontinue claims.

249

The Accident Compensation Corporation offers counselling to those who have been sexually abused or assaulted. The number of sessions depends on need. Family members can also have some sessions.

250

Review of Historical Claims Resolution Process – Report on the Consultation Process with Māori Claimants, July 2018, p12.

251

Transcript of evidence of Linda Hrstich-Meyer at the State redress hearing, 23 October 2020, p461.

252

See for example He Ara Oranga: Report of the Government Inquiry into Mental Health and Addiction, p59.

253

Transcript of evidence of Cheryl Munro (on behalf of James Packer) at the State redress hearing, 21 September 2020, p15.

254

Transcript of evidence of Sonja Cooper and Amanda Hill at the State redress hearing, 1 October 2020, p565.

255

Transcript of evidence of Linda Hrstich-Meyer at the State redress hearing, 23 October 2020, p480.

256

N v Attorney-General [2016] NZHC 547.

257

Statement of Patrick Stevens for the State redress hearing, 28 February 2020, p7.

258

Statement of James Packer for the State redress hearing, 13 February 2020, pp13-14. Mr Packer’s evidence was presented by his mother Cheryl Munro at the hearing.

259

Statement of Keith Wiffin for the State redress hearing, 12 February 2020, p15.

260

This was on the basis that the assessor’s report is legally privileged: see transcript of evidence of Helen Hurst at the State redress hearing, 28 October 2020, p784.

261

Transcript of evidence of Garth Young at the State redress hearing, 22 October 2020, p360.

262

Statement of Tanya and Georgina Sammons for the State redress hearing, 24 February 2020, pp14-15.

263

Statement of Linda Hrstich-Meyer for the State redress hearing, 27 January 2020, p21.

264

Transcript of evidence of Helen Hurst at the State redress hearing, 28 October 2020, p735.

265

See statement of Trish Grant for the State redress hearing, p22.

266

Transcript of evidence of Trish Grant at the State redress hearing, 28 September 2020, p302.

267

Lake Alice survivors may still today receive higher amounts of compensation – for example, Patrick Stevens received a payment of over $81,000 last year: statement of Patrick Stevens for the State redress hearing, 28 February 2020, p11.

268

We note that comparisons with international compensation schemes do not take into account New Zealand-specific factors, such as the accident compensation scheme.

269

MSD Historic Claims Business Process and Guidance, October 2018 (now publicly available on MSD website). MSD Historic Claims Business Process and Guidance, October 2019, version: 2.1, release date: 7 October 2019, owner: Linda Hrstich- Meyer, page 21, https://www.msd.govt.nz/documents/about-msd-and-our-work/ work-programmes/historic-claims/msd-historic-claims-business-process-and- guidance-07-2020.pdf

270

Transcript of evidence of Cheryl Munro (on behalf of James Packer) at the State redress hearing, 21 September 2020, p19.

271

Transcript of evidence of Helen Hurst at the State redress hearing, 28 October 2020, pp752, 772.

272

Ibid, pp754-756, 759-760.

273

Transcript of evidence of Philip Knipe at the State redress hearing, 19 October 2020, pp28, 33.

274

Ibid, from p25.

275

Transcript of evidence of Gay Rowe at the State redress hearing, 29 September 2020, p349.

276

Statement of Gay Rowe for the State redress hearing, 12 February 2020, p19.

277

Transcript of evidence of Gay Rowe at the State redress hearing, 29 September 2020, p349.

278

Transcript of evidence of Philip Knipe at the State redress hearing, 19 October 2020, p98.

279

Transcript of evidence of Steven Groom at the State redress hearing, 27 October 2020, p665.

280

Transcript of evidence of Steven Groom at the State redress hearing, 27 October 2020, p681; transcript of evidence of Helen Hurst at the State redress hearing, 28 October 2020, p748.

281

United Nations Declaration on the Rights of Indigenous Peoples, art 19.

282

Ethnicity data of claimants has not been systematically recorded by any agency, but the Ministry of Social Development, and Ministry of Education both gave evidence that they estimate a high proportion of the claimants to their respective processes are Maori: transcript of evidence of Simon MacPherson at the State redress hearing, 19 October 2020, p125; transcript of evidence of Helen Hurst at the State redress hearing, 28 October 2020, p751. The Ministry of Health gave evidence that Māori make up about 10-20 per cent of claimants to its process: transcript of evidence of Philip Knipe at the State redress hearing, 19 October 2020, pp97-98.

283

Transcript of evidence of Helen Hurst at the State redress hearing, 28 October 2020, p796.