Tē kitea ngā mōtika i raro i te Tiriti o Waitangi i roto i ngā takinga pūnaha taurima
Rights guaranteed in te Tiriti o Waitangi were absent in care settings

563. From 1950 to 1999, the rights guaranteed to Māori in te Tiriti o Waitangi were almost always absent across care settings. The Inquiry saw no explicit references to tino rangatiratanga or te Tiriti o Waitangi itself in legislation that applied to care settings’ nor in any of the key institutional factors, like standards of care, employment policies, or complaints processes, or in how oversight and monitoring was designed or implemented.

564. The Crown made guarantees to Māori in te Tiriti o Waitangi that were directly relevant to care settings. This includes the guarantee to Māori of tino rangatiratanga and the principles set out in Part 1 of this report including partnership, active protection, options, and good government. As discussed in this Part, these obligations were often not met.

565. The State did legislate changes specific to whānau, hapū and iwi in most care settings (excluding faith-based care and transitional and law enforcement settings) from the 1980s.[791] However, none of these changes used the language in te Tiriti o Waitangi, or referred to te Tiriti o Waitangi, or considered the pre-existing rights of Māori affirmed by te Tiriti o Waitangi, or incorporated the expanse of authority guaranteed to Māori.

566. The State care system is based on an assumption that the State has an innate responsibility to operate a care system for those deemed to be in need of care, including tamariki, rangatahi and pakeke Māori. This assumption fails to acknowledge the fundamental right of tino rangatiratanga over kāinga guaranteed to Māori by te Tiriti o Waitangi and does not recognise “the Crown’s sustained intrusion into the rangatiratanga of Māori over kāinga”.[792] This assumption also fails to acknowledge the compounding factors that contributed to Māori being overrepresented in care, including the ongoing impacts of colonisation. This is encapsulated in the Waitangi Tribunal’s He Pāharakeke, He Rito Whakakīkīnga Whāruarua report:

“The signatories to the Treaty did not envisage any role for the Crown as a parent for tamariki Māori, let alone a situation where tamariki Māori would be forcefully taken into State care – in numbers vastly disproportionate to the numbers of non-Māori children being taken into care.”[793]

I te ngaro ngā mōtika ā-tangata i te rahi o ngā takinga pūnaha taurima
Human rights protections were largely absent in care settings

567. From 1950 to 1986, institutions, foster homes and State-operated family homes failed to take into account the concept of human rights. There were no specific legislative references to the human rights of people in care, and it was left to individual institutions and foster homes to decide whether to respect, protect and fulfil those rights.

568. The 1970s saw the Race Relations Act and Human Rights Commission Act come into force, as well as the ratification of International Human Rights Covenants such as the International Covenant on Civil and Political Rights in 1978. However, it was only from 1986 that there began to be some references to human rights in legislation applying to care settings, and these were scattered, and often oblique, and applied only to some people in care. For example, in social welfare residences, regulations prohibited humiliating or degrading treatment of children and young people and the 1996 Code of Health and Disability Services Consumers’ Rights included some human rights (though the right to make an informed choice and give informed consent excluded people in compulsory care). Further information on steps that Aotearoa New Zealand took during the Inquiry period to specifically incorporate rights from international human rights instruments into domestic law is included in Part 2 of this report.

I noho tahanga te hunga i ngā pūnaha taurima i o rātou whānau, hāpori me o rātou reo kaikōkiri
People in care were isolated from whānau, communities and advocates

569. Many children, young people and adults in State and faith-based care were isolated from their whānau, kainga (family) and communities. Some staff and carers deliberately prevented people in care from maintaining connections with their families, whānau and siblings.

570. Parts 3 and 4 describe the evidence the Inquiry heard from many survivors that being separated from their families, culture and communities was traumatic for them, made them vulnerable to abuse and neglect once in care, and stopped them from disclosing abuse or neglect.[794]

571. For Māori, this isolation severed their connections to their whānau, hapū and iwi and contributed to cultural abuse. Many Māori survivors were prevented from speaking te reo Māori and practising their culture when they were in care, and in some cases were abused for doing so. For many tamariki, rangatahi and pakeke Māori who knew their language and cultural practices before entering care, this was lost once in care. The lack of Māori staff and carers also meant tamariki, rangatahi and pakeke Māori were more likely to experience racism, and less likely to disclose abuse or neglect.

572. For Pacific children, young people and adults in care, separation from their kainga contributed to experiences of cultural abuse and racism, increased the risk they would enter care and experience abuse and neglect once in care, and meant they were less likely to make disclosures of abuse.

573. Many survivors lacked access to an independent advocate to tell them about their rights while in care; to support them or represent them to make complaints; and to prevent and respond to abuse and neglect. Even when provisions were put in place to allow some people in care access to an advocate, many were not told about this or about their rights and their right to complain.

574. Without access to family, whānau, communities or advocates, children, young people and adults in State and faith-based care were at heightened risk of experiencing abuse and neglect.

He pūputu tonu te whakataurekareka me te parahako i te mana tangata mo te hunga i roto i ngā pūnaha taurima
People in care were regularly dehumanised and denied their human dignity

575. Inadequate standards of care, failure to implement existing standards, and breaches of standards contributed to different forms of serious abuse and neglect across all care settings. Part 4 of this report demonstrates that one of the most pervasive and persistent forms or consequences of abuse and neglect was that people in care were regularly dehumanised and denied their human dignity.

576. People are dehumanised when they are treated as less than human and that treatment strips them of their dignity. In Part 3 of this report the Inquiry discussed survivors’ experiences of being treated like animals and objects, not people. The abuse of people in care was fundamentally inconsistent with the preservation and promotion of their human dignity.

577. The failure to meet even basic standards of care showed a disregard for the dignity, rights and needs of children, young people and adults in care. Inadequate care standards, or a failure to adhere to these, resulted in inappropriate or unsafe care placements, a regimented and at times violent approach to care, inaccessible and ineffective complaints processes, and inadequate or failed processes for handling and responding appropriately to those concerns or complaints. The upholding of standards of care, when those existed, often depended on the actions and influence of individual carers or staff members.

578. Effective and appropriate care standards that are founded in legislation and that codify people’s rights, including their right to dignity, represent a core pillar of any effective safeguarding system and can assist in creating a safe care environment. However, these are not sufficient on their own to ensure the dignity and safety of the people who are being cared for. They require other elements of safeguarding, which are referred to in other chapters of this Part.

He maha, he taukumekume tonu ngā whakahaere i waenga i ngā tari kāwanatanga
Government agencies had multiple and conflicting roles

579. Throughout the Inquiry period, government agencies had multiple and conflicting roles in care. Agencies often:

a. designed their own care standards and care policies (such as the Department of Social Welfare’s Field Officers Manual)
b. regulated certain care providers (such as the Department of Education registering teachers between 1950 and 1989)
c. owned and operated care facilities (like the Department of Social Welfare’s residences, or, in the early part of the Inquiry period, the Department of Health’s institutions)
d. delivered care
e. employed and managed staff and carers
f. oversaw and monitored the provision of their own services, or employed or hosted units, bodies or individuals with oversight and monitoring roles (such as in Deaf, disability and mental health and social welfare settings)
g. designed, procured and funded care standards and services from third-party care providers (for example, in Deaf, disability and mental health settings and in social welfare settings)
h. approved, managed, oversaw and monitored care providers (such as IHC, Te Whakapakari Youth Programme and Moerangi Treks)
i. advised the State on its care-related policies and the regulation of care providers and workers.

580. This concentration of power, where an agency could be responsible for all aspects of a situation from decision-making to service provision to monitoring, decreased accountability and increased the risk of abuse. At times, these roles also overlapped with other government agencies and could become complex and confusing when combined with unclear, inconsistent or ad hoc legislation. This complexity and confusion could be exacerbated by significant public sector restructuring (as discussed in Part 2 of this report).

581. Chapter 5 of this Part explains that at times, government agencies’ confusion about their roles, accountabilities, and the extent of their statutory powers could lead to serious breaches of standards of care. Chapter 5 also explains that many staff and carers in government agencies were under-resourced, or had too many duties, leading to some of them having to ‘cut corners’ or not being able to carry out some of their duties.

582. The Mason report published in 1996 recommended the establishment of a Mental Health Commission because it would be independent of government.[795] The Ministerial Review of Child, Youth and Family Services in 2000 commented on the “almost impossible and, in some cases, contradictory demands which fall on the Department [of Social Welfare].”[796] This was linked to the Department’s “monopoly position in the Child Welfare field”.[797]

I te ngaro, e ngāwari noa rānei te karo i ngā kaupapa whakahaere
Complaint processes were absent or easily undermined

583. In comparison to other settings, social welfare settings did have in place complaints processes for much of the Inquiry period. They were set out in the Field Officers Manual and its later versions (including the Social Workers Manual). Like the standards of care set out in these manuals, complaints processes were not accessible to children and young people in care, their family or whānau.

584. For other settings, complaints processes were largely absent, with some processes being put in place late in the Inquiry period for disability and mental health, education, and transitional and law enforcement settings.

585. There were barriers to people in care raising concerns or complaints, including a lack of access to whānau, communities and advocates. When children, young people and adults reported abuse or neglect, they were not believed and sometimes called liars and troublemakers. Staff and carers not believing children, young people and adults in care was underpinned by societal attitudes like racism, ableism and disablism.

586. When there were concerns or complaints about abuse, the abuse was often treated as an employment issue or as a sin to be forgiven, rather than as abusive and possibly criminal behaviour that needed to be investigated, and that abusers needed to be held to account for. Senior leaders or managers prioritised institutional reputations over the safety of people in care (and subsequently, after the Inquiry period, they ‘negate’ or cover over institutional abuse during that period). Senior leaders or managers prioritised abusers’ reputations and future careers over the safety of people in care, including shifting the abuser to other residences or institutions and using confidential settlements. There were also consistent failures to report complaints of abuse and neglect to NZ Police.

He ngoikore tonu ngā mahi aroturuki
Oversight and monitoring was ineffective

587. From the evidence the Inquiry has seen, oversight and monitoring did not function effectively during the Inquiry period and this contributed to abuse and neglect in care. Care systems were often decentralised and governed by multiple departments and different pieces of legislation. There was little coordination between the departments responsible for care settings, which meant people in care were at greater risk of abuse and neglect. Once a person was in care, the State consistently failed to provide robust oversight and monitoring of institutions, foster parents, and staff and of the children, young people and adults in care.[798]

588. There was no single external, independent oversight or monitoring body or combination of bodies responsible for the safeguarding of all children, young people and adults in State and faith-based care during the Inquiry period.[799]

589. Instead, there were several independent bodies that had discrete roles in oversight of parts of some care settings. Some oversight bodies were independent of the State and some were part of the State. Monitors were established at different times, under different legislation, with a lack of consistency and coherence; there were gaps in areas of responsibility, and no common guiding principles. This ad hoc, piecemeal approach to oversight and monitoring contributed to abuse and neglect in care settings.[800]

590. Where oversight or monitoring bodies were in place, their effectiveness was limited by resourcing constraints and weak recommendatory powers. The State routinely failed to act decisively on their advice. There were frequent failures by monitors, oversight bodies, and the State to report unlawful behaviour, such as the use of seclusion or corporal punishment after 1990, to NZ Police. This was despite obligations or commitments that required them to report. The State has acknowledged that it did not have adequate processes in place to monitor and prevent abuse in care during the Inquiry period.[801]

Tata kore nei he whiu mo te mahi tūkino
There was little accountability for abuse and neglect

591. As discussed in Part 4 of this report, abuse and neglect were common experiences for many in care and became normalised in some settings.

592. Unlawful and serious breaches of standards of care were rarely reported to the NZ Police. Senior leaders and managers often demonstrated a reluctance to report abuse or neglect to NZ Police and in some cases took deliberate steps to defer or avoid reporting abuse or neglect to NZ Police or to defer or avoid following through with other accountability steps, such as dismissal under employment laws.

593. Other measures taken by some senior leaders and managers included:

a. denying that the abuse happened
b. calling the people who had complained liars or blaming them for the abuse
c. taking a litigious response to complaints
d. delaying or deferring dealing with complaints
e. shifting abusers to other locations
f. entering confidential settlements with abusers and providing abusers with positive references to help them move to new positions within care settings.

594. Examples of this are set out in Part 4 of this report, and in the Inquiry’s reports on redress (He Purapura Ora, he Māra Tipu: from Redress to Puretumu Torowhānui), Lake Alice Child and Adolescent Unit in Rangitikei (Beautiful Children: Inquiry into the Lake Alice Child and Adolescent Unit) and Marylands School and Hebron Trust in Ōtautahi Christchurch (Stolen Lives, Marked Souls: The inquiry into the Order of the Brothers of St John of God at Marylands School and Hebron Trust).

595. Across all of the Inquiry’s public hearings,[802] senior leaders also deployed other measures to minimise reputational risk as well as cover over institutional abuse during the Inquiry period. These included:

a. pointing out that their ability to provide evidence would be limited by a lack of information or ‘not knowing’ as they had not been present when the abuse or neglect occurred, and so limiting their liability, their organisation’s liability and avoiding blame
b. acknowledging the resilience of survivors while ignoring or providing limited acknowledgement that some survivors were and are angry, that some want a reckoning, and that most survivors want their claims to be resolved quickly and to be provided holistic redress, puretumu torowhānui
c. shifting the blame to others through:

i. shifting blame to another part of the institution they worked at or represented, or to a group affiliated or associated with that institution
ii. indicating that another organisation hindered or undermined the work of their institution
iii. blaming survivors for either holding up processes, as they were purportedly not credible, or hindering processes with their many requests for information and details

d. claiming that abuse and neglect occurred because of the law and the way the bureaucracy is structured – indicating that they had no agency in relation to their settings, policies, processes, practices, organisational culture and ways of working and guidelines
e. blaming an identified abuser and naming them a ‘bad apple’ rather than acknowledging that the settings, policies, processes, practices, organisational culture, ways of working and guidelines contributed to abuse and neglect occurring and becoming pervasive across many care settings
f. acknowledging that the abuse and neglect that occurred during the Inquiry period was a historical fact but insisting that it did not reflect the current state of care provided by their institution(s) 
g. indicating that lessons from the Inquiry period had been identified and that they had learned from previous reports, findings and recommendations, while not confirming that recommendations had been implemented and actioned. [803]

596. In addition, senior leaders noted areas they were improving their performance in order to deflect criticism from what had happened and manage their reputational risk. These areas for improvement were that they:

a. needed to work with whānau, hapū and iwi, be more responsive to upholding te Tiriti o Waitangi and become more culturally responsive having knowledge of tikanga, te reo and mātauranga Māori
b. were cognisant of their human rights obligations both domestically and internationally and were upholding them as necessary
c. had learnt from the ‘bad’ past and were now focusing their efforts on transforming themselves into a better organisation, and therefore they were best placed to lead any further change required.

He kōrero mutunga mo ngā takinga pūnaha taurima me ōna kaiwhakahaere
Conclusion on the care settings and people responsible for care

597. Although many institutions, residences, family and foster homes, schools, hostels, boarding houses and transitional care settings may have been successful in safeguarding people in their care during the Inquiry period, those the Inquiry examined were seriously flawed, as was the behaviour of many of the responsible senior leaders and managers.

598. Standards of care were deficient across all State and faith-based care settings and easily breached with little consequence or accountability. Human rights and the rights guaranteed to Māori in te Tiriti o Waitangi were largely or completely ignored, to devastating effect on those in care and their families, communities, whānau, hapū and iwi.

599. Many senior leaders and some managers in State and faith-based care settings undermined policies and laws intended to prevent and respond to abuse, to the extent that such policies and laws existed at the time. It was known for managers to skip vetting processes. There are examples of abusers being employed despite having previously been convicted or accused of serious sexual assault. Abusers were often shifted from place to place as a response to concerns or complaints about abuse, particularly in faith-based care settings. Many abusers who were shifted went on to abuse more people in care. Some senior leaders and managers took care to protect the abuser’s professional reputation when shifting them. Sometimes confidential settlements were used to avoid accountability for both the abuser and the institution and to protect their reputations. In some cases, senior leaders or managers gave abusers supportive references that allowed them to apply for new positions where they had continued access to people in care.

600. It is difficult not to observe that senior leaders seemed either oblivious or indifferent to whether they were risking further abuse and neglect of children, young people and adults in care. Their priority appeared to be avoiding any form of accountability for the abuser or their institution and avoiding reporting the abuse, rather than prioritising the safeguarding of people in their care.

Footnotes