Abuse inquiry must act on compensation

The first phase of the Royal Commission into Abuse in State Care is well underway. The Chair of the Commission, Sir Anand Satyanand, is engaged in wide-ranging discussions about the Commission’s final terms of reference. This consultation process will continue for several more weeks and then Sir Anand will offer his advice to Cabinet. Cabinet will then finalise the Commission’s terms of reference, probably before the middle of the year.

We know New Zealand survivors of abuse in care experienced systemic physical and sexual abuse. They suffered from emotional abuse and neglect. Some Māori children were taken from their Māori families and placed with Pakeha families, denying those Māori children access to their cultural heritage. The upcoming commission will investigate what abuse happened, what made it possible and what should be done to ensure it does not happen again.

The Satyanand Commission has an important task and the final terms of reference will shape how the commission operates, influencing what it does and what it does not. Therefore, decisions made about the terms of reference are critical to one of the most important questions for survivors—what will be done about compensation.

It is an international norm that survivors of systemic abuse receive compensation. Here in New Zealand, since 2006, the Ministries for Social Development, Health and Education have operated negotiated settlement processes for survivors of abuse in care. Together, these ministries have settled over 1300 claims. However, these programmes are non-transparent, excessively protracted and raise serious questions concerning partiality. Despite Māori constituting more than half of claimants, the programmes have not engaged with Māori stakeholders. Settlement figures are surprisingly low. The average settlement is less than $20,000, which is less than a fifth of comparative programmes overseas.

The draft terms of reference for the Royal Commission indicate that it should investigate the existing redress processes and recommend improvements.That is good news for survivors. However, equally important is how the commission proceeds with that investigation. The commission is likely to operate for several years. To give an illustration, the Australian Royal Commission into Institutional Responses to Sexual Abuse ran for five years.Here, many survivors are elderly, have waited years for compensation and have been mistreated by the present redress processes. Time is of the essence. An improved compensation process should not wait upon the commission’s final report.

The commission’s final terms of reference should encourage it to consider compensation as a priority. The present draft terms of reference envision the commission issuing interim reports. It would be good if the cabinet encouraged the commission to issue an interim report on compensation within its first year. That report should not confine itself to surveying existing programmes; it should also outline the foundations of a new compensation process.

The most important principle of any new process is the need to be survivor-focused. Tinkering with existing processes is unlikely to be sufficient. To gain the trust of survivors, the new programme should be wholly independent of existing ministries. An independent board, created by statute, with guaranteed funding and headed by a senior kuia or kaumatua (who might also be a senior judge) would provide credibility for survivors. Other board members should be drawn from the ranks of independently-minded medical practitioners, social workers and academics. There should be a strong survivor presence and Māori must be represented. The board should devise and oversee a process that is quick and transparent and provides applicants with adequate legal, archival and psychological support. It will be critical to facilitate access to care records. Settlement values should be internationally comparative and the programme should begin operation as soon as humanly possible and no later than January 1, 2020.

For too long, New Zealand has shunted survivors of systemic abuse through a compensation process that is both unjust and harmful. Positive change is unlikely to come without further struggle. A credible programme will be expensive. Therefore, first the commission and then parliamentarians will need to stand ready to explain it to the New Zealand public. An important first step will be to ensure the final terms of reference provide a clear roadmap for the commission, empowering it to issue credible and authoritative recommendations regarding an improved compensation programme quickly. From there, it will be up to Parliament to ensure a fair programme is implemented promptly.

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