The mindset of the Crown
Four factors coloured the Crown’s thinking towards these cases over the next decade:
Opening the floodgates
The first was a concern that settling claims too readily might encourage many more survivors to come forward, regardless of whether they had genuine, exaggerated or “opportunistic” claims. It did not consider it should pay compensation for acts for which it had legitimate legal defences. Nor did it want to take an approach that would require it to settle a large number of claims, especially if, in the Crown’s opinion, they would not stand up to scrutiny. Its view was that many of the claims had no legal or factual merit, or were excessively broad, or sought compensation for things for which the Crown was not or should not be liable. One document said that “if claims are settled without their scope being narrowed, it is difficult to envisage any living former state ward not having a claim for compensation against the Crown”.
It also doubted the genuineness of claimants. One file note, for example, said that the claimants were clearly looking for an “easy pay-out”, while another document said “the perception of likely access to compensation may also lead to claims being made opportunistically”. The Crown did not want to be taken advantage of, or as the Solicitor-General put it, to be seen as a “soft target”. A Cabinet paper recorded the Crown’s view that lawyers were employing a deliberate strategy to get compensation for claims “without having them looked at too closely”.
No evidence of systemic failure
The second factor was the Crown’s persistent view that there was no evidence of systemic failure or abuse. As mentioned, records and the Crown’s preliminary investigations showed evidence of abuse, but officials considered this evidence fell short of a “widespread culture of abuse” and did not indicate “systemic or endemic failure”. They formed the view that this meant there was no justification for a group settlement, apology, or public inquiry. One update to ministers said historic abuse claims lacked evidence of systemic or endemic failure, which was described as “the standard trigger for a public inquiry”.
Crown witnesses who gave evidence at our public hearing were unable to tell us what they would consider to be evidence of systemic failure – even though the term appeared again and again in reports on historic abuse claims. At the same hearing the Solicitor-General questioned whether anyone in the Crown has ever really grappled with the question of what systemic failure would look like. In documents from the time, some officials seemed to use the phrase to mean that the claimants were not reporting the same experience – in contrast to Lake Alice, where the complaints were of the same time period, and the same types of abuse by the same individual. Other officials referred to the view that the treatment complained of was consistent with standards of the day, or that the number of claims was low compared to the number of people who were in care, as reasons why they considered that abuse was not “systemic”. But this view persisted over the years despite the number of people reporting and making claims for abuse growing into the thousands, and the fact that it quickly became clear that there were groups of claimants reporting common experiences, for example at some social welfare residences.
We find that the Crown was wrong to conclude there was no evidence of systemic abuse or failure, and to conclude that there was no justification for an inquiry or alternative response. Systemic abuse can mean widespread abuse, or that there are system level factors, such as policies, structures and practices, that enabled or facilitated abuse. As Bridgit Mirfin-Veitch told us, “systemic abuse takes us beyond the notion of ‘bad things being done by bad people’ independent of the system, to a recognition that the system has operated in ways that has both provided the opportunity for abuse to occur or for it to continue unchallenged.”
We know from our work in this inquiry that there has in fact been both widespread abuse and systemic failures in the care of children or vulnerable adults. These include understaffing and overcrowding, lack of vetting, supervision and training of staff, cultures of violence in some settings, lack of effective complaint mechanisms and practices in some institutions of actively moving staff around following complaints of abuse. We will be making findings about these and other factors in our reports to come.
Even on the information available to the Crown in the mid-2000s, there was a strong possibility of many of these systemic failings in the institutions that were the subject of the claims. The preliminary investigations into Porirua Hospital, for example, showed evidence of overcrowding and understaffing. The review of records of social welfare residences showed evidence of a “kingpin” culture and violent initiation “rites” that were known to staff. Later investigation of staff records uncovered evidence some staff had been allowed to stay or had gone on to be employed at other institutions, despite allegations of abuse being made against them. If the Crown had taken a broader approach to considering the question of systemic abuse and failure, it might have also taken into account other evidence it had of widespread abuse and systemic issues in care facilities in Aotearoa New Zealand. For example, a report to the Department of Health in 1986 found general substandard conditions and deficiencies of care across psychiatric and psychopaedic hospitals – a report that in part led to the deinstitutionalisation of disabled people. And around the same time that these claims began being made, a report by the National Advisory Committee on Health and Disability in 2003 also found systemic neglect of the health of adults with intellectual disability, including medications being prescribed to deal with behavioural problems.
In short, the information the Crown had at the time more than justified an inquiry or other non-court process that could help uncover the full extent of abuse and neglect, and the causes and contributing factors to that abuse. As it received more claims, the evidence grew: as acknowledged by Garth Young of the Ministry of Social Development’s historic claims team, it is now clear “by the sheer fact that we have almost 4,200 claims and more coming in every week that there were certainly a lot of bad apples and it would appear not to be the systems and processes in place to keep that or keep them in check”.
The Crown’s rhetoric that there was no evidence of systemic abuse or systemic failure became a convenient excuse not to look more widely and risk broadening the scope for more claims. We are confident that any deeper investigation process would have found further evidence of systemic abuse, as we have.
Potential cost
The third factor, the potential cost of settling with an unknown number of claimants, weighed heavily on the Crown’s thinking, particularly if such a settlement were to set a precedent the Crown felt obliged to follow in other cases. The Crown was anxious to minimise this risk to public finances. It wanted to pay out money to different claimant groups in a consistent, principled way, that was a responsible use of taxpayer money. It was also concerned that if claims succeeded in court, this would only make future settlements more expensive and also increase the cost of defending cases as more would go to court.
Lawyers getting too much money
Finally, Crown officials were concerned at the amount of money going to claimants’ lawyers. A Cabinet paper in 2001 recorded anecdotal evidence suggesting Grant Cameron Associates received $2.6 million of the first round of Lake Alice settlements as a contingency fee. A 2008 Cabinet paper included a comment that Sonja Cooper received $2.8 million in legal aid funding in the 18 months to 31 December 2007. Reports about the amount of money lawyers were making also appeared in memorandums between officials.
Some officials suggested lawyers were drumming up false or exaggerated claims. The Ministry of Social Development’s Deputy Chief Executive of the time, Iona Holsted, even reported concerns in a memorandum that lawyer Sonja Cooper was behaving unethically, and speculated that she might have influenced claimants’ memories when gathering evidence, and “may deliberately target periods of time when records are poorest” in the claims she made on behalf of her clients. We find these suggestions entirely unfounded. The ministry’s current Deputy Chief Executive, Simon MacPherson, said the language in the memorandum was “inappropriate and regrettable”. However, the memorandum was not an isolated piece of correspondence. Other correspondence was suspicious of Sonja Cooper’s motives and methods, and the result was that officials could not see past their distrust of her to the victims of abuse she was representing.