98. Under the Terms of Reference the Inquiry must make general comments, findings, or both, about the nature and extent of abuse and neglect that occurred in State and faith-based care during the Inquiry period.[55]

Ngā taunakitanga mō ngā takahitanga maha o te Tiriti o Waitangi me ōna mātāpono
Strong evidence of numerous breaches of te Tiriti o Waitangi and its principles

99. The Terms of Reference directed the Inquiry to apply te Tiriti o Waitangi and its principles to its work.

100. The findings in Parts 3 to 5 of this report provide strong evidence that there have been numerous infringements of te Tiriti o Waitangi principles that apply in relation to the care of tamariki, rangatahi and pakeke Māori across multiple settings. There is strong evidence that te Tiriti o Waitangi and its principles were not taken into account in many care settings, to the significant detriment of tamariki , rangatahi and pakeke Māori in care, and this had a significant inter-related impact on whānau, hapū and iwi, and caused intergenerational harm. The Inquiry is profoundly concerned about this conclusion.

Ngā taunakitanga mō ngā takahitanga maha o ngā mōtika tangata i ngā tautuhinga maha
Strong evidence of numerous human rights violations across multiple settings

101. In Part 1 of the report, the Inquiry set out a range of non-binding human rights declarations relevant to care which Aotearoa New Zealand supported before and during the Inquiry period, and the legally binding human rights treaties Aotearoa New Zealand chose to join.

102. The findings in earlier Parts of this report provide strong evidence that the fundamental human rights of people in care were breached in multiple settings. There is strong evidence that many of the civil, political, economic, social and cultural rights referred to in human rights declarations and treaties were not upheld in many settings, to the significant detriment of those in those settings. The Inquiry is profoundly concerned by this conclusion.

Ngā take kino rawa o te tūkino me te whakahapa
Very serious cases of abuse and neglect

103. The Inquiry’s interim report, Beautiful Children, on the Lake Alice Child and Adolescent Unit, sets out how the use of electric shocks and paraldehyde as punishment met the definition of torture as outlined by Aotearoa New Zealand’s Solicitor-General, Ms Una Jagose. The State has not disputed these findings.

104. These cases also include the pervasive and severe sexual abuse and neglect of children and young people that occurred at Marylands School in Ōtautahi Christchurch, between approximately 1955 and 1983 and at Hebron Trust in Ōtautahi Christchurch between approximately 1986 and 1992. The Inquiry's interim report Stolen Lives, Marked Souls, discusses evidence that some of the St John of God Brothers used sexual abuse to punish children and young people or to intimidate them, or combined sexual abuse with other acts of punishment.[56]

105. The Inquiry's case studies on the Kimberley Centre in Taitoko Levin and Te Whakapakari Youth Programme on Aotea Great Barrier Island include evidence of sexual and other abuse being used to punish children and young people or to intimidate them. One of the elements of torture is severe pain or suffering, whether physical or mental, and the Inquiry recorded that sexual offending may constitute torture. This includes rape, which has been recognised as torture where at least one of the purposes for the rape was a prohibited purpose (to punish, to intimidate or coerce, or for a discriminatory purpose), and where the rape was committed by or with the consent or acquiescence of a person acting in an official capacity.[57]

106. In a 1986 report,[58] a United Nations Special Rapporteur set out examples of acts he considered would amount to physical and psychological or mental torture where they caused severe physical or mental pain or suffering, were intentionally inflicted for a prohibited purpose, and for which a person acting officially was responsible.[59] These examples included beatings that cause wounds, internal bleeding, fractures or cranial traumatism, burns including cigarette burns, electric shocks causing intensive muscular contractions, suffocation by near-drowning in water, rape, and the insertion of objects into body orifices. The Special Rapporteur also referred to the administration of certain drugs in detention or psychiatric institutions (including neuroleptics), that caused trembling, shivering and contractions, but “mainly make the subject apathetic and dull his intelligence,”[60] the prolonged denial of food, the prolonged denial of sufficient hygiene, the prolonged denial of medical assistance, total isolation and sensory deprivation, threats to kill or torture relatives, total abandonment, and simulated executions as possible acts of torture.

107. Other forms of sexual abuse, and sufficiently serious corporal punishment, can constitute cruel, inhuman or degrading treatment or punishment. The cumulative impact of conditions over time can also result in treatment being cruel, inhuman or degrading or otherwise contrary to human rights.[61] As set out in the Inquiry's interim report, Stolen Lives, Marked Souls, Aotearoa New Zealand likely has a positive obligation to take effective measures designed to ensure that individuals within its jurisdiction are not subjected to torture or cruel, inhuman or degrading treatment or punishment, including such ill-treatment by private individuals.[62]

108. Numerous cases of sexual abuse occurred in most care settings. A significant amount of sexual abuse would cause severe physical or mental pain and suffering, including penetrative and repetitive sexual abuse.

109. Survivors gave testimony of cigarettes being put out on them or otherwise being burnt with cigarettes. The Inquiry has recorded many cases of severe physical abuse. There are many other accounts of survivors experiencing severe pain and suffering due to abuse at the hands of those responsible for their care, including Government staff and people approved by the Government to provide care.

110. All of these matters give rise to a blatant and egregious disregard of the human rights of those individuals placed there including very serious issues of torture, and of cruel, inhuman or degrading treatment or punishment.

Te Whakapakari Youth Programme ki Aotea
Te Whakapakari Youth Programme on Aotea Great Barrier Island

111. As discussed in the Inquiry's case study on Te Whakapakari Youth Programme, Boot Camp, survivors were subjected to severe pain and suffering by people working for Te Whakapakari Youth Trust, a provider of child and family support services approved by the government in terms of section 396 of the Children, Young Persons, and Their Families Act 1989. This abuse included the rape of survivors and severe physical beatings by staff or by other children apparently with the acquiescence or encouragement of staff. It also included threats to kill survivors and threats against a survivor’s mother and family if the survivor said anything negative about Whakapakari. There was evidence of survivors being bitten by dogs and being forced into a dog kennel, having shots fired over their heads or towards them, and of a mock execution involving survivors being forced to dig their own graves at gunpoint and get into them. A survivor gave evidence that a staff member held another young person under the water in a creek. There is also evidence that the purposes of that abuse included the intimidation, punishment, and coercion of survivors. Very serious issues of torture, and of cruel, inhuman or degrading treatment or punishment, therefore arise.

112. Serious issues of torture, and of cruel, inhuman or degrading treatment or punishment, also arose in relation to Whakapakari staff sending survivors on their own to Whangara Island, known as ‘Alcatraz’, apparently as a form of punishment. This was an extreme form of solitary confinement constituting serious abuse, including because it involved the abandonment of the survivors on Whangara Island. Issues of degrading treatment also arise in relation to the routine strip-searching of survivors on arrival. Multiple complaints were made to authorities about Whakapakari and these were not appropriately addressed.

113. Survivors who were at Whakapakari after 4 December 1990 and who were under 18 years of age should be considered as having been deprived of their liberty under the United Nations Rules for the Protection of Juveniles Deprived of their Liberty.[63] This refers to “any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority”. The “Rules apply to all types and forms of detention facilities in which juveniles are deprived of their liberty. Sections I, II, IV and V of the Rules apply to all detention facilities and institutional settings in which juveniles are detained, and section III applies specifically to juveniles under arrest or awaiting trial.”

114. The Inquiry finds that the practices at Whakapakari as detailed in its case study, Boot Camp, constitute serious and extensive breaches of the United Nations Rules, including:

• Rule 12 (deprivation of liberty should only occur in conditions and circumstances which ensure respect for juveniles’ human rights)
• Rule 28 (the detention of juveniles should only take place under conditions that take full account of their particular needs, status and special requirements, and which ensure their protection from harmful influences and risk situations)
• Rule 31 (juveniles deprived of their liberty have the right to facilities and services that meet all the requirements of health and human dignity)
• Rule 33 (sleeping accommodation should normally consist of small group dormitories or individual bedrooms, and every juvenile should be provided with separate, clean and sufficient bedding)
• Rule 36 (every detention facility shall ensure that each juvenile has personal clothing suitable for the climate and adequate to ensure good health)
• Rule 37 (every detention facility shall ensure that every juvenile receives food that is suitably prepared and presented at normal meal times and of a quality and quantity to satisfy the standards of dietetics, hygiene and health)
• Rule 38 (every juvenile of compulsory school age has the right to education suited to his or her needs and abilities and designed to prepare him or her for return to society. Such education should be provided outside the detention facility in community schools wherever possible. Juveniles who are illiterate or who have cognitive or learning difficulties should have the right to special education)
• Rule 41 (every detention facility should provide access to a library that is adequately stocked with both instructional and recreational books and periodicals suitable for the juveniles, who should be encouraged and enabled to make full use of it)
• Rule 42 (every juvenile should have the right to receive vocational training in occupations likely to prepare him or her for future employment)
• Rule 49 (every juvenile shall receive adequate medical care, both preventative and remedial)
• Rule 51 (every detention facility for juveniles should have immediate access to adequate medical facilities and equipment appropriate to the number and requirements of its residents and staff trained in preventive health care and the handling of medical emergencies. Every juvenile who is ill, who complains of illness or who demonstrates symptoms or physical or mental difficulties, should be examined promptly by a medical officer)
• Rule 59 (every means should be provided to ensure that juveniles have adequate communication with the outside world)
• Rule 60 (every juvenile should have the right to receive regular and frequent visits, in principle once a week and not less than once a month, in circumstances that respect the need of the juvenile for privacy, contact and unrestricted communication with the family and defence counsel)
• Rule 61 (every juvenile should have the right to communicate in writing or by telephone, in principle at least twice a week, and to receive correspondence)
• Rules 63 and 64 (recourse to instruments of restraint and force for any purpose should be prohibited, other than in exceptional cases, where all other control methods have been exhausted and failed, and only as explicitly authorised and specified by law and regulation. No instrument of restraint or force should cause humiliation or degradation, and should be used restrictively and only for the shortest possible period of time)
• Rule 66 (all disciplinary measures should be consistent with the upholding of the juvenile’s inherent dignity and the fundamental objective of institutional care, namely, instilling a sense of justice, self-respect and respect for the basic rights of every person)
• Rule 67 (all disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned)
• Rule 70 (no juvenile should be disciplinarily sanctioned except in strict accordance with the terms of law and regulations in force. No juvenile should be sanctioned unless he or she has been informed of the alleged infraction in a manner appropriate to the juvenile’s full understanding, and given a proper opportunity of presenting his or her defence, including the right of appeal to a competent and impartial authority. Complete records should be kept of all disciplinary proceedings)
• Rule 71 (no juveniles should be responsible for disciplinary functions except in the supervision of specified social, educational or sports activities or in self-government programmes)
• Rule 81 (personnel should be qualified and include a sufficient number of specialists such as educators, vocational instructors, counsellors, social workers, psychiatrists and psychologists)
• Rule 82 (the administration should provide for the careful selection and recruitment of every grade and type of personnel, since the proper management of detention facilities depends on their integrity, humanity, ability and professional capacity to deal with juveniles, as well as personal suitability for the work)
• Rule 86 (the director of a facility should be adequately qualified for his or her task, with administrative ability and suitable training and experience)
• Rule 87 (in the performance of their duties, personnel of detention facilities should respect and protect the human dignity and fundamental human rights of all juveniles).[64]

115. The above requirements are basic and obvious. It is concerning that despite the State being aware of abuse at Whakapakari, authorities sent children and young people there for more than two decades.

116. Further, regulations such as the Children and Young Persons (Residential Care) Regulations 1986 and the Children, Young Persons, and Their Families (Residential Care) Regulations 1996 set out a series of rights and other protections for children and young people in social welfare institutions, many of which correspond with the United Nations Rules. However, those regulations did not apply beyond social welfare institutions.[65] This meant that section 396 providers such as Te Whakapakari Youth Trust were not subject to these regulations, and children and young people sent to those providers did not have the protection of them.

Kimberley Centre ki Taitoko
The Kimberley Centre in Taitoko Levin

117. The Inquiry found evidence of rape and other sexual abuse at the Kimberley Centre as set out in its case study, Out of Sight, Out of Mind. Kimberley survivors cowered and cringed if they were approached quickly (the ‘Kimberley cringe’), demonstrating long-standing and systemic physical abuse against those in care. The Inquiry also found evidence of serious physical assaults against children, young people and adults in care by staff and by peers. There was evidence of pervasive neglect including in relation to three choking deaths in the late 1990s,[66] and in relation to the personal care required to maintain the dignity of residents and avoid their humiliation. Some residents were subjected to long periods of solitary confinement.[67]

118. The Kimberley Centre was a place of systemic abuse. Many Kimberley residents were there for life, starting from when they were young children. Others resided there for very long periods. Many residents were therefore exposed to abuse for a lifetime, or for years and years. This abuse would have had a cumulative impact.

119. These matters also give rise to very serious issues of cruel, inhuman or degrading treatment or punishment.

Te kaha o te tūkino i ngā tamariki me ngā tāngata whaikaha
Serious abuse against children and the disabled

120. It cannot be emphasised enough that many of the victims of abuse and neglect, including of serious abuse, were children. Children are vulnerable simply because of their age. Those in care were often extremely vulnerable because of the circumstances that led them to being in care. There was an even greater vulnerability for disabled children. Similar considerations apply in respect of disabled people more generally and adults in care.

121. The vulnerability and susceptibility of those abused in care only increases the reprehensibility of that abuse.[68]

Te kore whai i te ara mōtika tangata ki te taurimatanga
Failure to take a human rights approach to care

122. Care was not generally understood as an environment in which human rights were at risk. The reasons for this include that too much trust was placed in care providers and other people in authority and those in care were often distrusted, as well as the limited visibility of human rights in Aotearoa New Zealand in relation to care referred to above. They also include perhaps a desire among many to believe that human rights abuses are something that happen overseas, not here. That belief is wrong. Not only has it produced complacency, but it has also allowed abuse and neglect allegations to be ignored or inadequately investigated.

123. While Aotearoa New Zealand often says that it is committed to human rights, its lack of adherence to many recommendations made by UN human rights committees as referred to in Part 7 of this report suggests otherwise. The Inquiry is also not aware of the State carrying out any systematic, regular monitoring of care against human rights standards to determine whether that commitment was being met in practice. There was no developed, specific framework aimed at ensuring that human rights in all care settings were respected, protected and fulfilled. This remains the case today, and there is no Aotearoa New Zealand-specific, human rights approach to care.

Footnotes

[55] Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions Order 2018, clauses 10.1 and 31(a).