Apologies

Apologies help many survivors heal and move on with their lives. They can also be a way for survivors to be assured the abuse they suffered will not happen to others. The scheme should facilitate meaningful apologies if survivors so wish (because some don’t, their focus being on other forms of redress). We emphasise apologies should be meaningful because many of those that survivors have received can be described, at best, as inadequate. Apologies frequently come in a template form and contain brief, vaguely worded content that minimises, trivialises and sometimes even rationalises the abuse. Some actually fail to squarely acknowledge the abuse, rendering the apology worthless.

Apologies must be tailored to individual survivors’ needs. Some want a written apology, some an apology in person, and some both. Many survivors, quite rightly, said apologies should come from a senior-level representative, such as a bishop in the case of a faith-based institution or a chief executive in the case of a State agency. Some want an apology from a person in the church who has a personal relationship with them.

Survivors whose faith and culture were closely entwined often want apologies that respect their particular cultural needs. They might, for example, want an apology to also be given to their families. 

Many survivors wanted an apology in combination with a restorative justice process where they could tell a perpetrator or institution how the abuse had affected them. Being heard and acknowledged in person was an essential element of an apology for such survivors. They might also share their ideas about how to prevent abuse and listen to any measures the institution was taking to do the same thing. We consider this exchange another essential element of an apology.

We consider the scheme should provide guidance to participating institutions on how to make apologies, and that institutions should use suitably trained individuals to make apologies. These individuals should show cultural humility, not just cultural awareness or sensitivity.

Recommendations

32.  If desired by a survivor, the scheme should facilitate meaningful acknowledgements and apologies from the responsible institution to the survivor and others affected by abuse in care. 

33.  Apologies should:

• acknowledge the tūkino or abuse, harm and trauma caused
• accept responsibility for the tūkino
• express regret or remorse for the tūkino
• be made by a person at an appropriate level of authority so the apology is meaningful
• commit to taking all reasonably practicable steps to prevent any recurrence of the tūkino
• be flexible and respond appropriately to the needs and wishes of the individual survivor
• be consistent, where appropriate, with tikanga Māori or with Pacific cultural practices 
• come directly from the institution concerned.

34.  To give effect to these apology principles, the institution concerned should:

• work with those harmed by the tūkino to apologise in a way that is meaningful to them as part of their wider healing
• ensure the person making the apology has the necessary cultural awareness and humility, and has received training about the nature and impact of abuse and the needs of survivors
• provide information about the steps it is taking or will take to prevent further abuse.

35.  The scheme should, where appropriate, give guidance to participating institutions about the form and the delivery of apologies.

36.  The institution should, if a survivor wishes, give an apology as part of a culturally based or other restorative process. The scheme should arrange such a process between the survivor (and any whānau if so desired) and the institution (if it agrees to take part) and any perpetrator (if the perpetrator agrees to take part and the survivor agrees to the perpetrator’s participation).

Oranga services

The feedback from survivors, researchers and other experts in the field is clear – redress must be tailored to the individual’s particular needs and not according to any narrow or standardised view of what it should consist of. Redress will mean different things to different people at different times in their life. It should not concentrate on one aspect, such as financial payments, to the exclusion of any other, but should offer a range of measures aimed at improving physical, mental, emotional, social, economic, spiritual and cultural oranga, or wellbeing, and more generally at restoring the mana of survivors and achieving utua kia ea. We heard often survivors and others say that the new scheme should be viewed holistically and be responsive to their changing needs at different times in their lives.

The needs of whānau may be important too, along with cultural and wider community considerations. Each survivor should be empowered to decide what works best for them.

Survivors said they valued having a choice about what oranga, or wellbeing services would work best for them. They also valued having a choice in how those services were provided, whether in a culturally appropriate way or by whom they were provided. Some Māori wanted Māori only to provide those services. The range of services must necessarily be wide because the impact of abuse manifests in so many areas of survivors’ lives. Abuse may contribute to poor educational, employment and social outcomes, greater vulnerability to mental illness or distress, irregular hormone levels and reduced immunity, which can affect physical health. Survivors should be offered whatever measures are necessary that will give effect to the principles of te mana tāngata and manaakitia kia tipu. Providers specialising in working with trauma-affected people would need to deliver these services. The help of a navigator or advocate should be available to survivors who need support deciding what oranga services work best for them, as well as help to access these services. Survivors should have access to oranga services for as long as they need to deal with the tūkino which may mean a long-term relationship with service providers or only occasional follow-ups with service providers as their needs change. The services would typically be necessary to restore the mana of a survivor.

Counselling and psychological care

Poor mental health was one of the most frequently mentioned impacts of abuse mentioned by survivors. Many said daily life was a struggle. They suffered from post-traumatic stress disorder, anxiety, depression, mental distress, regular flashbacks, nightmares, sleeping difficulties and drug and alcohol problems. Counselling services, including specialist drug and alcohol counselling and rongoā Māori, can help enormously. Counsellors who are skilled in working specifically with disabled people, especially people with learning disability, are necessary to meet the needs of these people. Psychotherapy can be another route to mental wellbeing. We consider counselling and other psychological care should be available to survivors. Māori survivors have spoken about the need for Māori-specific services.

Health and social services

Survivors frequently need to use health and social services. Many suffered serious physical injuries from abuse, such as head injuries, internal injuries and broken bones, that have lifelong consequences. They also developed chronic longer-term medical conditions from abuse, including cardiovascular problems, malnourishment, sexually transmitted diseases, chronic pain, incontinence, migraines, impaired brain functioning and memory loss. Many of these injuries were not treated at the time. Research here and overseas shows those abused in institutional care in childhood suffer poorer health outcomes generally. Access to rongoā Māori should also be an option. Disabled survivors may need specialist support services. Survivors also asked for social services, such as access to secure housing, financial advisory services and community activities. These should also be made available.

Education and employment

Survivors frequently said the poor education they received in care had greatly affected their employment and other opportunities. Some received no education, while others had their education interrupted by constant school or care setting changes. Some suffered cognitive impairment or behavioural difficulties as a result of their care, and this also affected their education, and eventually their employment opportunities, too. Some survivors had made deliberate efforts as adults to complete their education or obtain further education, but many found their limited schooling affected their ability to get or keep jobs, with the inevitable financial consequences and impact on their sense of self-worth. These survivors would benefit from numeracy and literacy education, career coaching and vocational training.

Connecting with whakapapa, whānau, hapū, iwi and other communities

Many Māori were disconnected from their whakapapa and whenua after being placed in care. They became alienated from their spiritual values, language, culture and identity. This alienation can take a toll on a survivor’s oranga, including their wairua, or spiritual wellbeing. Many Māori survivors have been unable to reconnect or rebuild relationships with whānau or with their cultural identity. Restoring whakapapa and reconnecting with whānau, hapū and iwi are vital elements of any new scheme for Māori. They should be helped with this, as should non-Māori survivors who also seek restoration of this nature.  

Building cultural knowledge

Māori survivors have also found healing in connecting or reconnecting with their cultural knowledge, including mātauranga Māori and reo Māori. We heard a similar desire to connect with culture and language from Pacific survivors. These survivors should receive support to learn their language and more generally build up their cultural knowledge.

Connecting with survivors

Survivors often spoke of wanting to connect with other survivors because of the opportunities it offered for mutual support and healing. Some discovered they were not the only victim of their perpetrator, and this knowledge was helpful and empowering. Survivor groups contributed to greater knowledge and awareness of shared difficulties – and shared opportunities to heal. As survivor Jim Goodwin noted: “Abuse happens in isolation, healing happens in communities.” Survivors should receive help to connect with other survivors.

Support with family and other relationships

For many survivors, disclosing abuse, particularly to their families, has proven traumatic. Many felt shame and anxiety. Many were not believed, some were punished and ostracised. Relationships were further strained if a survivor’s family was closely connected to a church. Some survivors, including Pacific people, spoke of how the stigma of abuse had prevented them from disclosing abuse to family members or lodging complaints. Support should be available to help survivors with family and other important relationships after disclosing abuse.

Maintaining healthy relationships

Trusting people or forming close relationships in later life is extremely difficult for many survivors. Many feel estranged from their own families. Abuse has destroyed some relationships. For many survivors, building and maintaining healthy relationships with their family and children is a critical part of their healing. Help should be available for survivors to do this if they wish.

Pastoral support

Some survivors want nothing to do with the faith-based institution in whose care they were abused, saying these institutions often place undue emphasis on pastoral care at the expense of proper compensation and accountability. Others, however, do want to reconnect and receive pastoral care. We consider the option of pastoral care is a matter for individuals to choose, but the scheme should facilitate this if a survivor wishes.

Immediate needs

The range of individual needs of survivors can vary enormously. Some told us how they needed dental work, a battery for their motor scooter, an education for their children and themselves. Small things could often make the biggest difference, although some survivors found offers of material items patronising and insulting. Ultimately, what best helps a survivor can be learned only from a one-on-one conversation. Modest financial assistance should be available to help fund one-off services or purchases that would assist survivors and their whānau.

Recommendations

37.  The scheme should enable survivors and, where appropriate, their whānau to access measures to restore mana and oranga, consistent with the principle of manaakitia kia tipu. Survivors should be able to access, aided by an advocate or navigator if necessary, a range of services to meet their unique needs, and these services should include:

• counselling and other psychological care
• rongoā Māori practitioners
• healers
• help with education and employment, healthcare, secure housing, financial advisory services, disability support services and community activities
• help to connect or reconnect with whakapapa, whānau, hapū or iwi, wider community and fellow survivors
• cultural redress and help to build cultural capacity and connection or reconnection with culture, including language learning
• help with family and other important relationships after disclosing abuse
• support to build and maintain healthy relationships with family members.

38.  The scheme should be able to offer survivors a choice of modest, one-off redress measures such as small purchases or services that will help them and their whānau to achieve utua kia ea. 

39.  The scheme should facilitate contact, such as for pastoral support, with a participating institution if a survivor wishes.

Financial payments

A financial payment is a component of all existing State and faith-based claims processes, just as it is of all overseas redress schemes. It is a tangible acknowledgement that abuse took place, and it is also a way to help survivors rebuild their lives and support any whānau or family members. Its purpose should be to acknowledge in a meaningful way – not compensate for – abuse and harm. Compensation may be difficult and time-consuming to calculate. It is also the approach taken in civil litigation. Survivors are free to pursue compensation through the courts, but we advise against adopting a compensatory purpose for the scheme, not least because of the time and expense involved.

We have not attempted to set down specific payment amounts in this report because there first needs to be, in our view, broad public discussion about what are fair and reasonable amounts to pay survivors. Such a discussion must involve survivors, other interested parties and the public. In Ireland, a committee made up of individuals from a range of disciplines was established to seek and consider submissions from individuals and organisations before making recommendations on how to determine payments and payment ranges. This may be a useful approach to follow. We make the following comments to guide discussions:

Meaningful payments

The purpose of a standard claim payment should be meaningful recognition of the abuse suffered and its impact (just as the purpose of a brief claim payment should be meaningful recognition of the abuse suffered). That means setting payments at a level that takes into account factors such as the seriousness of the abuse and its impacts on the oranga of the survivor, which may include lost opportunities. The impact of behaviour resulting from a survivor’s abuse on later generations may also be a factor to consider, particularly since, from a te ao Māori perspective, individuals belong to hapū and iwi, wider kin groups.

The vulnerability of survivors at the time of their abuse can be another consideration. A young age, a disability, a pre-existing physical or mental condition, abuse at home or in a previous setting, the reason for being placed in care, such as the death of parents or inability of parents to provide care – all these circumstances represent a type of vulnerability because they create a greater need for care – a need that was answered not with care but with abuse, and therefore amounts to a fundamental betrayal.  

Payments should also be high enough to make out-of-court redress a meaningful alternative to civil litigation.

Current payments

Payments by State and faith-based institutions do not, in our view, amount to meaningful redress. We have already described the considerable range in payments by State agencies – anywhere from $1,000 to $90,000 in the case of the Ministry of Social Development, although the average is a modest $20,000. The Ministry of Health average is $6,000, and the Ministry of Education average is $15,300. These figures are very low compared with payments by overseas schemes. In the Australian National Redress Scheme, the maximum is $A150,000 (NZ$157,000) and the average about $A80,000 (NZ$84,000). In the Canadian Independent Assessment Process for Indian Residential Schools, there was a standard track and a complex track. Under the standard track, a maximum of $C275,000 (NZ$315,000) was payable. Up to $C250,000 (NZD$287,000) could be awarded in addition to that in the complex track for proven actual income loss. The average was about $C91,000(NZ$104,000). In the Irish Residential Institutions redress scheme, the average was about €60,000 (NZ$98,000) and the maximum €300,000 (NZ$488,000), while in the upcoming Redress Scotland scheme, the average is predicted to be about £30,000 (NZ$49,000).

The Ministry of Social Development has guidelines for categorising claims. Category six, the second highest, requires very pronounced and harmful sexual and physical abuse, along with wide-ranging practice failures, and must have happened while the individual was a vulnerable child. Category seven involves all of this, plus exceptional circumstances, such as death or violence. The ministry expects only three per cent and 1.5 per cent of claims respectively to fall into these two categories. It sets average payments for category six at $50,000. Payments for category seven can be above $55,000. We consider these amounts patently insufficient to provide meaningful recognition of the degree of abuse, harm and trauma suffered by qualifying individuals. And of course, still lower payments apply to the remaining 95.5 per cent of claimants.

The Ministry of Education has five payment categories. Category four, the second highest, has a maximum payment of $20,000 for moderate sexual and/or physical abuse. Considerations include frequency of abuse and degree of harm suffered. Category five has a payment range of $20,000 to $30,000 for serious or extremely serious abuse (although payments can be more than $30,000 with ministerial approval). The Ministry of Health requires severe sexual and/or physical assault and/or a significant unauthorised period of solitary confinement before paying its maximum of $9,000. Payments of this level are also plainly inadequate.

Faith-based institutions have, by comparison, made slightly higher payments. The Catholic Church average is $30,000 (with the highest $152,000), and the Anglican Church’s average is around $30,000 (with the highest $100,000). The equivalent figures for The Salvation Army are $29,000 and $91,500. These average payments also are too low to provide meaningful puretumu torowhānui.

Under the new scheme, we would expect payments for standard claims – both the average and the range – to be substantially higher than current State and faith-based payments (see recommendations 44 and 93 below). As for brief claims, we consider those designing the scheme will need to decide whether to pay a single fixed amount, regardless of claimants’ circumstances, or set a payment range – which will, of course, be lower than that for a standard claim.

Similar decisions will need to be made for advance payments and common experience payments (see recommendations 44 and 93). A relevant factor for advance payments will be the reasonably low level of claim validation, balanced against the possibility that survivors who qualify for the advance payment may not have the opportunity to apply for other payments. The amount(s) set for any common experience payment will also need to be based on the nature and extent of systemic abuse at the relevant institution.

Consistency and transparency

Payments within and between State and faith-based institutions have not been consistent, and nor have their methods of calculating payments been transparent. The scheme needs to be both. One way to achieve this is by using a matrix, or general framework. Payments to survivors would be based on where the abuse fitted within that matrix. Overseas schemes, including in Australia, Canada and Ireland, have used a matrix to promote consistent, transparent decision-making on payments.

Some survivors, however, may prefer a less structured, more individually tailored assessment approach. They may also regard a matrix as drawing arbitrary distinctions between different types of abuse. Certainly that criticism has been levelled against the Australian scheme for making higher payments for penetrative sexual abuse – a maximum of $A150,000 compared with a maximum of $A50,000 for non-penetrative abuse (which includes oral sex). However, giving decision-makers wide discretion could potentially leave the scheme open to inconsistency, which could lead some survivors to feel their claim had been treated unfairly. A matrix would need to rank different types of abuse – and, importantly, also recognise the gravity of serious, long-term abuse or neglect. It would also need to strike the right balance of detail and discretion so as not to restrict decision-makers. And it could potentially take into account the impact of abuse or neglect. More generally, a matrix would help improve efficiency because it would lead to faster decision-making. We can see advantages to having a matrix, although their use can be controversial. Those designing the scheme will need to consider this and any other options.

Financial advice

The scheme should make financial advice available to survivors when they receive their payments so they can use the money to their best advantage. They should be encouraged to get this advice, which should be available in ways that suit a wide range of survivors. Survivors who received a payment from Ireland’s Residential Institutions Redress Board could also access a free, confidential and independent budgeting advice service.

Investment fund option

Survivors may wish to pool their financial payments in an investment fund or other financial vehicle as a collective. The Māori Collective and the Purapura Ora Collective will need to seek views on the option of survivors receiving redress as part of a wider survivor settlement that could be invested and managed on behalf of survivors. As well as generating continuing periodic payments to survivors, such investments could enable survivors to provide for future generations.

Payments in instalments or to a trust

Those designing the puretumu torowhānui scheme should consider whether it should have a power to direct that a payment to a survivor be made in instalments or to a trust. Some overseas schemes had this power, which was considered necessary for some survivors who had addiction or other problems and were at risk of spending a lump sum ill-advisedly. On the other hand, some survivors considered they alone should decide what they did with their payment (with access to financial advisors if they wish).

Previous payments

The scheme should deduct any previous payments for abuse, whether from a State or faith-based institution, an indirect State care provider, ACC or the courts, when determining monetary payments. This will entail some administrative work, but it is essential to ensure fairness between survivors’ payments. If the scheme decides to index these earlier payments, that is, convert their value into today’s dollars, it needs to take care to explain this early on to survivors and in a way they understand. Working out the effect of past payments on a forthcoming payment should be done in consultation with survivors. 

Effect on other entitlements

Some survivors receive government entitlements for reasons that are distinct from their abuse in care claim. A payment by the scheme should not adversely affect a survivor’s financial position. It should not count as income. Other than as explained below in relation to ACC, it should not reduce or limit any government entitlements, such as welfare and unemployment benefits, disability benefits and disability support services.

Review of scheme payments

From time to time, the scheme should review payment amounts to take into account such factors as inflation or relevant awards by the courts.

Recommendations

40.  Financial payments by the puretumu torowhānui scheme should provide meaningful recognition of abuse and where relevant impact, but not compensation for harm or loss.

41.  The scheme should, in determining the size of a financial payment, take into account:

• the seriousness of the tūkino inflicted and suffered
• factors that increased a person’s risk of abuse when in care or harm from the abuse, including young age, disability, mental health condition and previous abuse. Such factors may be seen as aggravating the seriousness of the abuse
• the impact of the abuse on the oranga of the survivor, including lost opportunities and, where relevant, intergenerational impact
• the principles underpinning the system including manaakitia kia tipu
• the scheme’s standards of proof
• payments to other survivors to ensure consistency and fairness
• any other payments a survivor may have received for abuse in care, such as from previous redress processes, court cases or settlements
• the need for payments to:
  • be sufficiently high to make the scheme a meaningful alternative to civil litigation
  • compare favourably with those made by overseas abuse in care schemes.

42.  The scheme’s financial payments should not adversely affect survivors’ financial position and should not count as income. Other than for ACC purposes, the financial payments should not reduce or limit any entitlements to financial support from the State, including welfare and unemployment benefits, disability benefits and disability support services. 

43.  The scheme should periodically review the financial payments it makes and increase them as necessary to ensure:

• payments continue to provide appropriate value to survivors, taking into account matters such as changes in the consumer price index and relevant awards by the courts
• equity between survivors.

Common experience payment

The puretumu torowhānui scheme should offer the option of a payment to individuals who were at an institution or other care setting where systemic abuse (including systemic neglect) took place during a particular time period. Any survivor who was there during that time should be able to apply to the scheme for what we call a common experience payment. This set amount should be calculated so it provides meaningful recognition of the abuse or neglect suffered.

A survivor would not have to prove they were abused. Instead, the scheme would accept the survivor suffered abuse because they were at the institution or care setting at the relevant time. This would lessen the burden on some survivors, particularly disabled survivors, who might struggle to provide evidence they were abused or neglected and go through an individual assessment. Offering this type of payment should enable the scheme to help more survivors.

In the same way survivors who make a brief claim could later change their mind and make a standard claim, so survivors who received a common experience payment could later opt to make a brief or standard claim. In such a situation, the common experience payment would be deducted from the brief or standard claim payment.

Similarly, a survivor who received a brief or standard claim payment and later learned an institution where they were placed had been deemed a place of systemic abuse or neglect could apply for a common experience payment. In such a situation, the scheme would take the previous payment into account when deciding whether to make any additional payment.

The scheme would need to develop criteria for determining whether systemic abuse or neglect had taken place in institutions or settings. The criteria should be based on findings in our reports and evidence gathered from claims the scheme receives. Criteria could include such things as operational policies in place at the time, the nature of an institution’s management, factors that actively or passively enabled abuse to go on unchallenged, and the pervasiveness of the abuse or neglect.

Detailed knowledge of the institution or setting during the time in question, built up through an investigation or other fair process, would be necessary before concluding that a placement there at that time warranted a common experience payment. There are two reasons for requiring a high level of certainty that systemic abuse or neglect took place. One is that such a designation may imply many people who worked there were likely to be perpetrators of abuse or neglect – a serious implication with potentially serious consequences for the reputation and wellbeing of the individuals concerned, as well as for their whānau. The other reason is to preserve the integrity of the scheme.

The scheme should be able to recommend other agencies investigate a particular institution or setting to determine whether survivors placed there should receive a common experience payment. The scheme could make this recommendation based on anything it learns from its work, including its own monitoring of claims. Agencies could also initiate these investigations themselves, which should be carried out by investigators independent of the institution or setting under investigation. We consider other agencies would be better placed or have the required resources to carry out or commission these investigations and report back to the scheme, which would then determine whether to make a common experience payment available. To undertake these investigations itself would, in our view, divert the scheme from its core purpose of deciding on claims.

After the scheme deems an institution or setting to be a place where systemic abuse or neglect took place, it should take active steps to identify and reach as many qualifying survivors as possible. It should tailor these efforts to the specific needs of the group of survivors it has identified.

Recommendations

44.  Any survivor placed in an institution or care setting that the puretumu torowhānui scheme determines was a place of systemic abuse or neglect should be able to apply for a common experience payment of a set amount. The scheme should:

• develop criteria to determine what institutions or settings, if any, were places of systemic abuse that would make a common experience payment justified, using the findings of this inquiry’s reports and evidence gathered from claims the scheme receives
• actively reach out to ensure as many eligible survivors as possible receive a common experience payment once an institution or setting is identified as a place of systemic abuse or neglect
• tailor efforts to contact qualifying survivors to the specific needs of those identified
• take into account any other payments a survivor has received for abuse in care, such as payments from previous redress processes, court cases and settlements.

The scheme should have the power to recommend an investigation into whether systemic abuse or neglect occurred at an institution or other care setting for the purposes of determining whether there should be a common experience payment for people who were in that institution or care setting.

Record of claim outcomes

We consider the puretumu torowhānui scheme should give survivors a written record of its decision on their claim, including the reasons for reaching the decision. This accords with the value of transparency. Assuming a decision is in a survivor’s favour, such a record is an official validation that the survivor suffered abuse in care. If the scheme doesn’t accept a survivor’s claim or doesn’t offer the redress the survivor expected, the record should help the survivor understand why the scheme made the decision it did. The scheme should be required to give the reasons for decisions because it encourages good decision-making and will be useful if a survivor or institution seeks a review of a decision.

The record of the scheme’s decision should be in accordance with the confidentiality requirements set out at recommendations 55 and 56. The record should be in plain English or, if a survivor wishes, in reo Māori or New Zealand Sign Language. The scheme should give assistance to any survivor who needs help to understand the record. 

Recommendations

46.  The scheme should give survivors a written record of its decision, which should set out the tūkino, or abuse it accepts took place and where relevant the impact it had (or if not accepted why the scheme does not accept the claim), along with the reasons for its decision. The record should be in plain language and, if preferred, in reo Māori or New Zealand Sign Language. The scheme should make available assistance as necessary to help survivors to understand the record.

Waivers and legal effect of decisions

Waiver

A waiver, for our purposes, is a legally binding undertaking not to take court action in return for a settlement. The overseas schemes we reviewed commonly require survivors who accept redress to waive their right to take court action or any other form of civil action against any institution allegedly responsible for their abuse. State and faith-based institutions in this country usually make a waiver a requirement of their settlement offers. Waivers are also commonly required as part of settling civil disputes.

We do not favour a waiver requirement. The puretumu torowhānui scheme is designed to fulfil a restorative, rather than adversarial, function, but not an accountability function to the same degree that the courts provide. It will also not provide compensation. Survivors should not have to give away the right to seek accountability and compensation in return for redress from the scheme. If the scheme functions as intended, the likelihood of people also seeking redress through the courts is likely to be low, particularly since we have recommended any redress from the scheme should be taken into account in a court award to prevent “double-dipping”. For survivors, requiring a waiver may cast doubt on the genuineness of institutions’ apologies because it could suggest they made them only as a means of avoiding liability for the abuse. Finally, a waiver affecting a claim involving credible allegations of torture may be inconsistent with a survivor’s rights under human rights law.

Some institutions argued that failing to require a waiver would leave open the possibility of future court action, which would create uncertainty. They also said it might affect what they could say to the scheme and to survivors, and might discourage voluntary participation in the scheme. However, we consider our recommendations on the legal effect of the scheme’s findings and decisions will address these concerns. Even so, we consider the two-year review of the scheme we recommend below should examine whether the absence of a waiver has caused any significant difficulties.

Legal effect of scheme’s findings and decisions

A scheme decision should have no legal effect on any institution or individual named in a claim. Since institutions and individuals would not have the same rights as they enjoy in the courts (such as the right to cross-examine the survivor or a right of appeal against decisions to the courts), and because the standards of proof are lower than those in civil and criminal cases, the scheme’s decisions should not amount to a finding of civil or criminal liability or fault for any named institution or individual. As such, the possibility of court action should not prevent institutions from making a full apology or in any other way participating fully in the work of the scheme. If a survivor’s court case were successful, the court could deduct any payment from the scheme from any compensation or other payment the court ordered. 

As we say in relation to recommendation 55, all information given to the scheme, along with its findings, should not be available to, or admissible in, any other investigation or proceeding (subject to any referrals process). Because of this, and because the scheme’s decisions will not have any legal effect outside of the scheme, its processes should generally be able to run in parallel to any other investigation or proceeding, such as a criminal, civil or disciplinary case against a named individual.

Recommendations

47.  Accepting puretumu torowhānui from the scheme should not:

• prevent a survivor from taking civil proceedings or making a complaint for abuse and harm, although the redress should be taken into account in any successful civil proceedings
• affect any rights a survivor may have against an individual allegedly responsible for the abuse or affect any rights regarding abuse or harm not covered by the puretumu torowhānui from the scheme
• prevent a survivor from making a complaint to Police, a professional or faith-based disciplinary body or an employer of an alleged or known perpetrator.

48.  A scheme decision should have no legal effect on any organisation or individual named in a claim, other than for the purposes of the scheme.

ACC entitlements

Survivors should be able to apply to the scheme and ACC. However, the scheme and ACC should take into account any payments or other entitlements provided or facilitated by the other. That will assist in promoting equity between survivors.

While this will add some work for the scheme’s administration, as discussed in part 2.6 most survivors do not receive payments from ACC. Most survivors with ACC cover only receive counselling. Therefore, other than in a relatively limited number of cases, the scheme should not have to take into account ACC payments. Any counselling or other rehabilitation entitlements provided by ACC should be considered by the navigators and other service providers who will assist survivors with accessing oranga services following an approval by the scheme of their claim. 

One of the other options we considered was for ACC to take over redress supports for all survivors. On the plus side, ACC would have administrative structures in place to do the job, although it might still have to set up a specialist division to work with survivors, and the legislative changes required would be significant. There is also a question about whether survivors would trust a government organisation such as ACC. The other option was for the scheme to assess and provide ACC entitlements to eligible survivors, but this would increase the complexity of the scheme, duplicate processes and generally be costly and inefficient.

Recommendations

49.  Survivors should be able to make a claim to both the puretumu torowhānui scheme and ACC. Any payments or services provided or facilitated by one should be taken into account by the other.

Establishment and operational methods

The puretumu torowhānui scheme needs to operate on a clear and legally defined footing so it knows precisely what its powers and responsibilities are, and so survivors and institutions can challenge the scheme through reviews and the courts if it exceeds those powers or fails in those responsibilities. The best way to achieve this, in our view, is through enabling legislation and regulations. Eligibility criteria and entitlements should be spelt out, and the Government should consider setting out the timeframes for the scheme to make decisions.

The scheme should operate in a way that promotes confidence in its work and trust among survivors, many of whom are deeply distrustful and suspicious of the State, institutions and authority generally. We have already explained in detail the lack of transparency in current redress processes, the inconsistency in outcomes between and within the various redress processes, the lack of information about eligibility criteria, how decisions are made and entitlements, and also the delays and lack of updates. The scheme must show how things can be done differently, and in accordance with its core values.

To do that, it must have, from the outset, sufficient resources, the right information technology and trained, motivated staff, as well as the necessary powers to do its job properly. A comparison between the number of claims resolved by the Ministry of Social Development and the Canadian scheme, the Independent Assessment Process, illustrates the difference resourcing can make. The ministry told us it had closed 1,942 claims out of a total of 4,177 in the 17 years between 2003 and 2020, whereas the Canadian scheme had resolved more than 4,000 claims each year in five of the years it operated, and this was despite its claims process involving adjudicated hearings. The stark difference can only be the result of much better resourcing and organisation, making it vital the scheme is resourced to succeed.

We expect the organisations that join the scheme will co-operate fully with its work, but if they do not, the scheme should have the power to require information from them. This power should not, in our view, apply to survivors, although the scheme should make clear to survivors who do not supply the information it requests that their failure to co-operate may affect the outcome of their claim.

Some overseas schemes said applications involving numerous institutions could be time-consuming to assess because privacy laws meant information provided by one institution could not necessarily be shared with another, forcing them into the laborious task of redacting information before passing it on. This is an unnecessary administrative task that delays decisions and drains efficiency. For this reason, we consider the scheme should have the power to forward information to survivors and other relevant agencies without any redactions when the scheme reasonably considers this necessary to fulfil its functions. In deciding whether to redact, the scheme should consider any significant privacy interests in the particular information against matters such as the need for survivors and participating institutions to have complete information relevant to a claim, the resources required to redact, and the high importance of the scheme making timely decisions.

There should also be a way for survivors to make complaints about the scheme.

Recommendations

50.  The Government should legislate to establish the puretumu torowhānui scheme and should set out in this legislation, or in regulations, eligibility criteria and entitlements. It should also consider setting out in regulations the timeframes for the scheme to make decisions.

51.  The puretumu torowhānui scheme should:

• make decisions that are fair, equitable, predictable, timely, transparent and consistent from survivor to survivor and from year to year
• be adequately resourced, including having information technology systems, so it can make good, timely decisions
• have an oversight body to consider complaints about the scheme.

52.  The puretumu torowhānui scheme should have the power to:

• require any organisation that joins the scheme and any other relevant body to give it information
• give information to survivors, organisations in the scheme and any other relevant body without redactions, provided the scheme reasonably considers this is necessary to fulfil its functions.

Reviewing decisions

Reviews

A right of review is inherent in the justice system and builds confidence in processes and corrects mistakes. It should apply to scheme decisions, particularly given the lack of such an avenue for most survivors to date. The right of review should be for both survivors and institutions. It should apply to brief and standard claims (including those continued by a family member of a deceased survivor and any decision involving a payment by instalments to a survivor or a lump sum payment to a trust) and to decisions on interim, advance and common experience payments. Those designing the puretumu torowhānui scheme should consider whether any deadline should apply to seeking a review. The scheme should also be able to review a decision if information comes to light that would have had a significant effect on the outcome of the decision. It should be able to do this of its own accord or at the request of a survivor or institution. 

Some overseas schemes allow reviews by institutions, and some don’t. Such reviews can delay outcomes and be stressful for survivors, although they encourage sound decision-making. We favour a right of review for institutions because it allows errors to be found without having to go to court. Alleged perpetrators should not have a right of review because it could traumatise survivors, cause delay and make the scheme more adversarial in nature. Also, alleged perpetrators do not have to make financial contributions to the scheme. 

Any review brought by a survivor or other applicant (for example a family member on a survivor’s behalf) should not result in a less favourable outcome than the original decision. Such an approach would remove any risk to survivors and avoid discouraging them from seeking a review. It would also be survivor-focused and consistent with the scheme’s aim of moving away from an adversarial process.

Those designing the puretumu torowhānui scheme should determine who conducts reviews, for example, scheme decision-makers or independent reviewers. Whoever it is should not have made the original decision.

Court reviews

We consider survivors and institutions should have a right to seek judicial review of the puretumu torowhānui scheme decisions, but only after they have used the right of review they have in the scheme. There should not be a general right of appeal to the courts on the substance of the decision. To allow a general right of appeal could result in drawn-out litigation and would generally run contrary to the scheme’s function of providing timely and final decisions in a non-adversarial way. The right of judicial review already exists and promotes good decision-making. Alleged perpetrators should be able to exercise their right to seek a judicial review because this would allow them for example to correct any material errors of fact, procedure or law. 

Recommendations

53.  Survivors and institutions should be able to ask for a review of decisions by the puretumu torowhānui scheme. A review brought by or on behalf of a survivor should not result in a decision less favourable to the survivor than the original one. 

54.  A scheme decision should be open to review, including by the scheme of its own accord, if more information comes to light that is likely to have had a significant effect on the outcome of the decision.

Confidentiality

We consider the puretumu torowhānui scheme’s records, including its decisions on claims, should be confidential. The scheme will handle large volumes of highly confidential and sensitive information, especially survivor accounts of their abuse, which are likely to contain the names of alleged perpetrators and institutions where the abuse took place. In making decisions about claims, the scheme will have to disclose some of this information, such as to individuals named as perpetrators and relevant institutions. However, the scheme should treat such information as confidential and should not share it more than is necessary.

The puretumu torowhānui scheme must be clear from the outset how it will manage, store and disclose the information it holds – and eventually dispose of it as well – to ensure it remains safe. The scheme must also ensure survivors are clear about what the rules are. Failing to do so is likely to jeopardise survivors’ trust in the scheme and discourage them from making claims.

Nothing, in our view, prevents a survivor who has accepted a scheme offer from disclosing any details of the settlement to a third party, including the identity of the institution and alleged perpetrator. However, the scheme should redact any details that might identify any alleged perpetrator from the record of its decisions. It should also not disclose any information to any organisation not in the scheme without a survivor’s consent unless it first redacts any information that might identify any survivor, subject to any exceptions established by law. Nor should it, except in accordance with its referrals process, disclose any information to any organisation or person capable of identifying any alleged perpetrator, subject to any exceptions established by law. Subject to what we say below about referrals, all information given to the scheme, and its findings, should not be available to, or admissible in, any other investigation or proceeding, whether criminal, civil or disciplinary. Finally, the scheme should clearly explain its confidentiality rules and obligations to institutions in the scheme.

Referrals

The puretumu torowhānui scheme should help third parties, such as Police, disciplinary bodies and employers, to identify and investigate alleged perpetrators, and in so doing help to hold perpetrators to account, possibly uncover other perpetrators and prevent abuse. Many survivors have approached our inquiry in large part because they wished to prevent what happened to them from happening to others. Some, however, are likely not to want the scheme to report their abuse to Police, go through a criminal trial or take part in a disciplinary process. They may, for example, fear for their safety when an alleged perpetrator hears of the allegations, or, if they are in prison, they may fear that fellow prisoners will regard them as co-operating with Police, which can invite retribution. Having felt disempowered for much of their life, it is essential the scheme does not take survivors’ consent for granted. The scheme needs to be respectful of survivors’ wishes and find a way to involve them in referrals to third parties. A case in 2018 involving the Ministry of Social Development and other agencies established that there were constraints on the agencies handing over information about survivors because of the great vulnerability of these individuals, even though that might be permitted by legislation such as the Privacy Act 1993.

The scheme should actively involve survivors and interested organisations in developing clear, consistent processes for determining when to make a referral and what information to include in a referral. We consider the only information the scheme is likely to refer is a survivor’s allegations, which would be consistent with promoting confidentiality and keeping redress and other processes separate. The scheme should seek views on whether and how to make a referral if a survivor doesn’t want to have any contact with police or other agencies. It should also consider whether to make anonymous referrals containing details of the alleged abuse and alleged perpetrator but not the survivor’s identity, as happens in Australia. These processes will need to be in place before the scheme begins. There should be a strong consensus about these processes to minimise any need for the courts to become involved. A risk assessment may be a prudent step before making a referral, as occurs in Australia, especially if a survivor is still in care and the alleged perpetrator works or is otherwise in the same care setting. In such a situation, the safeguard checks described previously should take place.

Recommendations

55.  The puretumu torowhānui scheme should keep confidential any information it receives, and should:

• clearly set out and explain any exceptions to this obligation
• not disclose any information to any organisation not in the scheme without a survivor’s consent unless:
  • the disclosure is in accordance with its referrals process
  • the information is redacted to remove anything that could identify a survivor, subject to any exceptions established by law
• clearly tell survivors how it manages their records, including who can access them and when, and how long it will keep them.

56.  The puretumu torowhānui scheme should redact any alleged perpetrator’s name and any other identifying details from its decisions.

57.  The puretumu torowhānui scheme should establish consistent processes for the referral of allegations of abuse to police, employers of alleged perpetrators, professional or faith-based disciplinary bodies and other relevant agencies. Safeguards against neglect or retribution of disabled survivors in care or other survivors should be built into these processes.

58.  A survivor should be able to disclose to anybody the puretumu torowhānui they received, the scheme’s decision and the identity of the institution concerned. The survivor should also, subject to law, continue to be able to disclose details of the abuse to any person as they see fit.

Reporting

Awareness of abuse in care and its consequences has been relatively low until recent times. One result has been that survivors often feel alone and find it hard to disclose abuse. Limited public understanding of abuse in care has enabled institutions and perpetrators to evade full accountability. Public awareness of the scale of abuse in care among Māori, Pacific, Deaf and disabled people has been particularly low, in part because care institutions have kept such poor ethnicity and disability data. This is changing, however, and the puretumu torowhānui scheme should play its part in building public understanding of the issue. One way to do this is to keep survivors and the public informed about its work by reporting on a range of key data at least once a year. This will also provide a yardstick against which to measure the scheme’s performance.

Recommendations

59.  The puretumu torowhānui scheme should publish a report at least yearly with statistics on:

• the number of claims made, the number of claims relating to each participating institution, and the types of abuse or neglect involved
• a breakdown of its decisions on these claims
• the average time for making a decision
• the size and range of financial payments
• the types and frequency of other entitlements made available
• the age, iwi affiliation, ethnicity – including specific Pacific ethnicity, gender, and any disability of survivors who made the claims
• the number of reviews sought and the decisions made on them.

Independent reviews

The Crown should designate an independent agency to review the puretumu torowhānui scheme’s operation and to evaluate how it works and recommend any improvements to ensure it offers a high-quality service. Such reviews of overseas schemes have in some cases recommended wide-ranging changes. Survivors and their communities should be actively involved in the reviews, and any review panel that is established should have strong survivor representation.

Recommendations

60.  The Crown should designate an independent agency to review all aspects of the puretumu torowhānui scheme’s operations after it has been running for two years, and thereafter at periodic intervals, to ensure continuous improvement in its services. The review should include survivors and should give effect to the Crown’s obligations under te Tiriti o Waitangi.

Reporting powers

The establishment of the puretumu torowhānui scheme offers an opportunity for the first time to collect and analyse data about survivors and abuse in care in a systematic and wide-ranging way. To date, relevant agencies and institutions have collected data separately about survivors, and none has looked systematically at survivors’ ethnicity, demographic profile, any disability, the circumstances of the alleged abuse, the location of alleged perpetrators and a host of other useful data contained within official records. The scheme will inevitably collect a significant amount of information on survivors and abuse in care generally, and this will put it in a strong position to identify systemic issues – including any institutions in which abuse was common or widespread, perpetrators who moved from institution to institution, and types of survivors particularly affected by abuse – and make authoritative comment on how systemic issues have arisen and what should be done to avoid a repetition of past mistakes.

We heard from survivors and experts that any puretumu torowhānui scheme should have this function because many survivors seek redress to ensure the systemic issues that led to abuse were identified and addressed. We also heard that this type of function should be independent of the State or other body responsible for care and protection. The scheme will have that independence.

We therefore consider the scheme should have powers to report on any systemic issues it identifies and make recommendations to relevant agencies, including monitoring agencies, about what should be done in response. The scheme should also have the power to require agencies to report back on what they have done in response to its recommendations, and for all of this to be made public to encourage accountability and action. As we have noted earlier, the scheme should be able to recommend an investigation into a particular institution or care setting to determine whether it should make a common experience payment to those placed in such an institution or setting. Finally, the scheme should provide information and any recommendations for reform to the Crown. All of this will help reform the provision of care, including safety, investigation and complaint processes.

Recommendations

61.  The puretumu torowhānui scheme should have the power to:

• report to care providers or any agency, including monitoring agencies, on information it receives about systemic issues and make recommendations on how to respond to these issues including for the purposes of determining a common experience payment
• require care providers or agencies to report on actions they have taken in response to its recommendations
• make recommendations and responses public
• provide information and recommendations to the Crown on areas of reform relevant to abuse in care, including health, disability services, adoption, Oranga Tamariki, ACC, education and housing.

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