Time to talk compensation for state care abuse
Prompt action by the new inquiry into abuse in the state care system and monetary redress could provide a measure of desperately needed justice, writes the University of Auckland's Dr Stephen Winter
At last, New Zealand will have a formal inquiry into the abuse of children in state care. If the Government adheres to its 100-day programme commitment, we should know more detail before February 3, 2018. At present, there is extensive public debate about the terms of reference for the inquiry. However, there has been little discussion of financial compensation for survivors – and the current process is not fit for purpose. The inquiry should be charged with examining the present monetary redress process and making recommendations for its improvement.
The foundations of the present redress process were laid in 2008 when the government introduced a two-pronged approach to the problem of historical abuse in care. First, the Department of Internal Affairs ran the Confidential Listening and Advice Service. Chaired by Judge Carolyn Henwood, the Service did admirable work, hearing testimony from 1103 survivors. The second component of the Government’s approach was the Crown Litigation Strategy, which stipulates that any legal suit by abuse survivors will be strongly defended in court – i.e. the Crown will use every legal means available to defend itself.
As an alternative to a legal suit, the Government agreed to negotiate settlements with survivors. That commitment forms the basis for the present monetary redress process. The government has negotiated settlements with around 1300 survivors.
However, the existing process is secretive, difficult and plagued by delays. In 2016, the average time to process a claim was 27 months and there are some claims that are more than a decade old. There is almost no public information on how these programmes operate. The procedures followed, and the evidence they use, are obscured from survivors and the public. In essence, the redress procedure is a very quiet process in which the Ministry investigates its own past practice without any effective oversight, raising serious concerns about impartiality.
Compensation payments provided through the process are very low by international standards. The average settlement in New Zealand is around $19,500. For comparison, in Ireland’s industrial schools programme, the average was the equivalent of approximately NZ$100,000. The average payments in Canada’s Individual Assessment Process were the equivalent of approximately NZ$113,000. This makes the average payment in New Zealand less than 20 percent of both comparators, yet, it is unlikely that abuse is, on average, 500 percent less severe in New Zealand than elsewhere.
These concerns have brought criticism of the redress process from a series of United Nations bodies. In 2015, The UN Committee Against Torture expressed concern ‘that victims have not been awarded with full redress, including compensation and rehabilitation’. Similarly, in 2016, The UN Committee on the Elimination of Racial Discrimination and the UN Committee on the Rights of Child also recorded criticisms, the latter being ‘seriously concerned’ about the ‘[d]ifficulties faced by child victims of abuse and neglect in State care [who] seek redress’.
Given the present problems, the new inquiry must be empowered to consider the following points: firstly, is the 2008 Crown Litigation Strategy an appropriate response to survivors of abuse? Secondly, does the present redress process operate appropriately? Finally, if the inquiry finds deficiencies in either the litigation strategy or its implementation, what changes should the Government make?
Addressing the last question, there are two broad types of redress programmes. In an individual assessment model, redress payments are strongly sensitive to the individual’s particular experience of injury. The second option is a common experience model in which payments respond to a shared experience of injury. New Zealand’s present approach follows the first model. There may be good reason to consider supplementing this approach with common experience payments for every survivor.
As international precedents, Canada Indian Residential Schools Settlement Agreement, operative since 2006, provided both individual assessments and common experience payments. Queensland Redress (2006-2010) had a similar twofold structure. In New Zealand, a common experience payment could be provided to both new claims and those previously settled.
A new common experience programme might pay a flat rate or have a simple time-indexed tariff increasing in step with time spent in state care. Either way, this new programme should be low cost in terms of administration, and easy to navigate for survivors. It should operate quickly, requiring only a simple check of the survivor’s prior status as a ward of the state, and would supplement existing programmes to avoid the legal and moral questions that would emerge in any attempt to re-adjudicate previously settled claims. The new programme would respond to survivors’ experience of an abusive system care; therefore, the inquiry could limit it to survivors of historic abuse—those who were in care prior to 1993.
The need for change is urgent. The issue of monetary redress must be addressed by the new inquiry, which might follow the Australian example of issuing a consultation paper redress well before issuing its final report. The flow of new claims from survivors remains strong and prompt action by the inquiry (and the Government) could provide a measure of desperately needed justice.