68. The Inquiry’s 2021 interim report He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, included 95 recommendations that, if implemented, would:

“…establish what will eventually be a new scheme to provide puretumu torowhānui, or holistic redress for survivors of abuse in the care of State agencies, agencies providing care on the State’s behalf (which we refer to as indirect State care), and faith-based institutions. This puretumu torowhānui scheme will aim to restore the power, dignity and standing of those affected by abuse in care, without them having to go to court, as well as take effective steps to prevent abuse. It will fit within what we refer to as the “puretumu torowhānui system”, which is the wider system of services, organisations (including the courts), laws and policies that have a role in providing different types of puretumu torowhānui and preventing or responding to tūkino in care.”[32]

Ngā tūtohi popoto o He Purapura Ora, he Māra Tipu: Ki tua i ngā puretumu torowhānui
Summary of recommendations in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui

69. The key recommendations made in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui must be urgently implemented. To distinguish from recommendations in this final report, recommendations originally set out in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui are called “Holistic Redress Recommendations.”

70. In He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, the Inquiry recommended that the Crown should establish a puretumu torowhānui system to respond to abuse in State care, indirect State care and faith-based care (Holistic Redress Recommendation 1). Those designing it and operating it should give effect to te Tiriti o Waitangi and its principles (Holistic Redress Recommendation 2) and it should be consistent with the commitments Aotearoa New Zealand has under international human rights law (Holistic Redress Recommendation 3).

71. The Inquiry recommended that the Crown should:

a. establish and invest in a well-resourced independent Māori Collective made up of Māori to lead the design of the puretumu torowhānui scheme (Holistic Redress Recommendation 5)
b. establish an independent Purapura Ora Collective that includes people with relevant expertise and lived experience of disability to ensure the puretumu torowhānui system and scheme are designed from the perspective of survivors (Holistic Redress Recommendation 6)
c. consult with survivors, experts and other interested people (Holistic Redress Recommendation 7)
d. consult faith-based institutions, indirect State care providers, other interested parties and the public (Holistic Redress Recommendation 8), and
e. take an all-of-system approach to responding to abuse in care (Holistic Redress Recommendation 9).

72. The Inquiry recommended that the Crown should set up a fair, effective, accessible and independent puretumu torowhānui scheme (Holistic Redress Recommendation 12), underpinned by the principles, values, concepts, te Tiriti o Waitangi obligations and international law commitments that will guide the design of the system (Holistic Redress Recommendation 13) and governed by a body that gives effect to te Tiriti o Waitangi and reflects the diversity of survivors, including disabled survivors, as well as including people with relevant expertise (Holistic Redress Recommendation 14).

73. The puretumu torowhānui scheme should provide a safe, supportive environment for survivors to talk about their abuse, consider survivors’ accounts and make decisions on puretumu torowhānui, disseminate information about the scheme, and report and make recommendations on systemic issues relevant to abuse in care (Holistic Redress Recommendation 16).

74. The puretumu torowhānui scheme should operate independently of the institutions where the tūkino, or abuse, harm and trauma took place and should have no interactions with these institutions or the people within them, except where necessary to carry out its functions (Holistic Redress Recommendation 17).

75. The Inquiry recommended that the puretumu torowhānui scheme should be open to all survivors, enable whānau to continue a claim made by a survivor if the survivor dies, or make a claim on a survivor’s behalf and prioritise claims from elderly or seriously ill survivors (Holistic Redress Recommendation 18). It should cover physical, sexual, emotional, psychological, racial and cultural abuse in care, along with neglect, which may include medical, spiritual and educational neglect and historical, contemporary and future claims of abuse in care (Holistic Redress Recommendation 19).

76. The puretumu torowhānui scheme should, regardless of whether an institution still exists or has funds, cover abuse in any State agency that assumed responsibility, either directly or indirectly, for the care of an individual when they were abused and any faith-based institution that assumed responsibility for the care of an individual when they were abused (Holistic Redress Recommendation 20).

77. The puretumu torowhānui scheme should extensively and proactively publicise its work (Holistic Redress Recommendation 22). It should be trauma-informed and flexible, minimise any barriers to obtaining redress, be timely, allow survivors to be flexible, be respectful and responsive to the cultures of all survivors, support survivors to make their own informed decisions throughout the claims process, and have enough suitably trained staff so that the number of times survivors must recount the tūkino or abuse, harm and trauma suffered is minimised (Holistic Redress Recommendation 23).

78. The Inquiry recommended that the puretumu torowhānui scheme should have processes in place so that survivors and their whānau who interact with it receive manaakitia kia tipu (Holistic Redress Recommendation 24). The schemeshould provide support services that are free, flexible, culturally appropriate and tailored to individual needs, to help survivors, and where appropriate whānau, understand the puretumu torowhānui scheme and make a claim (Holistic Redress Recommendation 25).

79. The puretumu torowhānui scheme should offer a listening service to survivors so they can talk about their experiences of tūkino, or abuse, harm and trauma, in a private and non-judgemental setting (Holistic Redress Recommendation 26) and should, if survivors wish, use information disclosed to the listening service in support of their claim for puretumu torowhānui (Holistic Redress Recommendation 27).

80. The Inquiry also recommended that the Crown offer faith-based institutions and indirect State care providers a window of opportunity to voluntarily join the puretumu torowhānui scheme before considering any necessary measures to ensure their participation, including terminating or not renewing contracts. Faith-based institutions and indirect State care providers should contribute to the scheme and the Crown or the scheme should have a process for collecting any payments awarded against these entities.

Te whakatinana ō ngā tūtohi ō He Purapura Ora, he Māra Tipu
Implementation of recommendations in He Purapura Ora, he Māra Tipu

81. The Inquiry prioritised delivering its He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui report and its recommendations for a puretumu torowhānui system and scheme because the Inquiry recognised that survivors had been waiting for a long time for recognition and remedies of the abuse and neglect they suffered. The Inquiry also identified areas for urgent interim action to be taken until the new system and scheme was in place, such as making interim payments for elderly or seriously ill survivors, where appropriate.[33]

82. In December 2021, the government announced that it intended to introduce a new independent redress scheme, with a collaborative design process to begin in mid-2022 and final decisions to be made around mid-2023.[34] The government noted at that time that it was:

“…moving on this now … because we want to minimise delays for survivors who are waiting for their claims to be resolved. We are conscious of the age and ill-health of many of the survivors who suffered abuse at a time when care was heavily institutionalised.”[35]

83. In the more than two years since the He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui report was delivered, the government has made very little clear progress in implementing its Holistic Redress Recommendations. The government has failed to meet the timeframes the Inquiry set in the report, and it has failed to meet the timeframes it set itself. The steps the government has taken to date are inconsistent in important respects with the Holistic Redress Recommendations.

84. The Inquiry is frustrated and disappointed about these delays. Survivors have died waiting for the puretumu torowhānui system and scheme to be established. As the Inquiry has set out in Part 8, it is not clear whether survivors who have accepted a settlement in the meantime will have access to a new scheme, as the government has not yet made final decisions on the scope of any new scheme. This situation is unacceptable.

85. The Inquiry remains of the view that full implementation is required to provide survivors with access to effective and fair holistic redress – puretumu torowhānui. In 2023 the government set up a design group to provide advice on the implementation of the recommendations. The government should give effect to the design group’s work, alongside the Inquiry’s recommendations.

He hautū i te pūnaha puretumu torowhānui hei kaupapa matua, ināia tonu nei
Implement the new puretumu torowhānui system and scheme as an immediate priority

86. The problems with existing redress processes are well-documented. The solution, in the Inquiry’s view, is establishing a new puretumu torowhānui system and scheme that is open to all survivors of abuse in State and faith-based care, including indirect State care, and is independent of the State, indirect State care providers and faith-based institutions. In line with the Inquiry’s Holistic Redress Recommendations 12–14, the puretumu torowhānui system and scheme, once established, should be run by an independent statutory Crown entity with a board, at ‘arm’s length’ from government.

87. This puretumu torowhānui scheme would help ensure there is consistency and equity in the outcomes for survivors. Properly designed, it would be survivor-focused, trauma-informed and accessible to all survivors. This requires ensuring there is survivor representation in the leadership, governance, and operations of the new scheme.

88. Properly resourced, it would become an efficient way of providing puretumu torowhānui, and in particular would develop specific skills and work proficiently with Māori, Pacific Peoples, Deaf, disabled people, and people experiencing mental distress. This requires leadership and staffing of the new scheme to prioritise diversity and lived experience.

89. Properly independent, it would avoid the need for survivors to approach the organisations they did not trust, an interaction many found distressing or traumatising. It would also eliminate the inherent conflict of interest these organisations face in investigating themselves.

90. Such a scheme, being governed by legislation, would have defined rules and transparent outcomes. Further, having a single scheme that covers all State, indirect State care and faith-based institutions would mean that survivors who were abused in several institutions would not need to seek redress from each.

91. The Inquiry is deeply concerned that survivors still do not have access to puretumu torowhānui or redress for the abuse and neglect they suffered. Since the He Purapura Ora, he Māra Tipu report, more survivors have passed without seeing any redress for the tūkino they experienced. In the Inquiry’s view the government response to the He Purapura Ora, he Māra Tipu report has not been adequately communicated to survivors and stakeholders. We cannot afford to stall progress any longer. The government needs to move with urgency to implement the recommendations in the Inquiry’s interim report on redress, as well as the recommendations in this chapter. This should include swift publication of a roadmap for implementation of the puretumu torowhānui system and scheme to ensure transparency and openness about the path forward.

92. Recommendation 1 responds to clause 32(c) of the Inquiry’s Terms of Reference, which relates to other appropriate steps the State and faith-based institutions should take to address the harm caused by abuse in care.

93. Some of the recommendations in this final report expand on, or replace, one or more of the 95 Holistic Redress Recommendations in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui. This is explained when the relevant recommendations in this report are discussed. Where any of the recommendations in this final report may appear to contradict any of the Holistic Redress Recommendations and this is not clearly explained, the Inquiry intends for the recommendations in this report to take precedence.

Tūtohi 1 | Recommendation 1

As an immediate priority, the government and faith-based institutions should implement the 95 Holistic Redress Recommendations in the Inquiry’s interim report on redress, He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, together with the recommendations of the design group, subject to any further recommendations made in this report.

He whakapahā me te tohu ki ngā pārure o ngā mahi tūkino i ngā pūnaha taurima
Apologies and acknowledgements of the harm caused by abuse and neglect in care

94. Recommendations 2–7 respond to clause 32(c) of the Inquiry’s Terms of Reference, which relates to other appropriate steps the State and faith-based institutions should take to address the harm caused by abuse in care.

Kia puta he tohu me te reo whakapahā tūmatawhānui i ngā kaitaki matua
Key leaders to make public acknowledgements and apologies

95. The Inquiry considers that public acknowledgements and apologies are appropriate steps to address the harm caused.[36] The Inquiry notes the Crown Response and a small group of survivors have begun working on a national apology.

96. In the Inquiry’s view, an authentic apology must include acknowledgement of the harm and trauma caused, acceptance of responsibility for the harm and an expression of regret or remorse, must be made by a person at an appropriate level of authority, and must come directly from the institution concerned (Holistic Redress Recommendation 33). It should include a commitment to redressing harm financially and providing supports to ensure the restoration of wellbeing and mana. In addition, as emphasised by the vast majority of survivors who spoke to us, a genuine apology must entail a commitment to do everything possible to stop abuse and neglect in care from happening again.

97. The Inquiry’s interim report He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui made 95 Holistic Redress Recommendations, including that the Crown and relevant faith-based institutions and indirect State care providers should take accountability by publicly acknowledging and apologising for the tūkino inflicted and suffered at an individual, community and national level (Holistic Redress Recommendations 10 and 11).[37] The Inquiry added that apologies from “heads of relevant faith-based institutions and indirect State care providers, would be a symbolic counterweight to the years of denial of any systemic problem in care institutions”.[38]

98. All apologies should be trauma-informed and survivor-centric. To ensure this, the Inquiry considers that its recommendations on public apologies and acknowledgements should be expanded and made more specific. The Inquiry expects all acknowledgements and apologies to include strong engagement with affected communities in accordance with implementation Recommendations 126-127.

Kia puta he reo whakapahā ā-motu i te Pāremata
National apology in Parliament

99. The Inquiry acknowledges the work undertaken to date by the Crown Response Design and Advisory Groups on a national apology. This is a new recommendation, which should be considered alongside the Holistic Redress Recommendations in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui on public acknowledgements and apologies (Holistic Redress Recommendations 10 and 11).

100. Ahead of the apology, the Inquiry recommends that the Prime Minister, relevant ministers and other government officials privately meet with a group of survivor leaders to acknowledge their tireless efforts in support of this Inquiry and the resulting apology. This will also provide an opportunity for engagement and reflection about the apology and for the Prime Minister and government to hear from survivors about their reflections on the Inquiry process and the important work that is to follow.

Tūtohi 2 | Recommendation 2

The Prime Minister should make a national apology for historical abuse and neglect in the care of the State (both direct and indirectly provided) in the House of Representatives. The national apology should:

a. be developed and agreed with a representative group of survivors
b. be consistent with the puretumu torowhānui system and scheme and the Holistic Redress Recommendations from the Inquiry’s interim report on redress, He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui
c. apologise to all survivors of abuse and neglect in State-based care (both direct and indirect care), and include specific apologies to:

i. the many who suffered abuse and neglect who have died and are no longer able to share their experiences and acknowledge them and their whānau, hapū, iwi, communities and support networks
ii. Māori survivors, their whānau, hapū, iwi, communities and support networks
iii. Pacific survivors, their kainga, communities and support networks
iv. Deaf survivors, their whānau, hapū, iwi, communities and support networks
v. disabled survivors, their whānau, hapū, iwi, communities and support networks
vi. Pākehā / NZ European survivors, their family, communities and support networks
vii. survivors who experienced mental distress, their whānau, hapū, iwi, communities and support networks
viii. Takatāpui, Rainbow, MVPFAFF+ survivors, their whānau, hapū, iwi, communities and support networks

d. as outlined in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, make a specific apology to groups who were harmed, including Māori, where appropriate.

Kia puta he tohu me te reo whakapahā tūmatawhānui mai te Pope
Public acknowledgement and apology from the Pope

101. An apology from the Pope is a necessary step towards true reconciliation and acknowledgment of the harm suffered by survivors of abuse and neglect in the care of the Catholic Church in Aotearoa New Zealand.

102. Internationally, some inquiries have recommended a papal apology. In March 2010, Pope Benedict XVI wrote a pastoral letter of apology for the abuse that had been carried out by Catholic clergy in Ireland.[39] In Australia, a papal apology was not recommended; however, Pope Francis responded to the work of the Inquiry by saying that the findings of Australia’s Royal Commission into Institutional Responses to Child Abuse “deserves to be studied in depth”.[40]

103. Apologies have been offered by Te Rōpū Tautoko and the St John of God Order for the abuse and neglect suffered by survivors who were cared for by the Hospitaller Order of the Brothers of St John of God at Marylands School and Hebron Trust. Although the apologies have conveyed empathy, these did not address the responsibility for the harm done.

104. In its closing statement at the Inquiry's Marylands School (St John of God) Hearing (February 2022), the Catholic Church accepted that the abuse and neglect that occurred at Marylands and Hebron Trust was “the darkest chapter in the history of the Catholic Church in New Zealand.”[41]

105. Other orders of the Catholic Church caused immeasurable harm to children and young people who were in their pastoral care, attending Catholic schools, orphanages, hospitals, or placed into Catholic foster care.

106. The Pope must make the public apologies and acknowledge and accept responsibility for the abuse and neglect of survivors in the care of dioceses and religious congregations of the Catholic Church in Aotearoa New Zealand. The Inquiry notes that the Pope is scheduled to make an Apostolic Journey to Indonesia, Papua New Guinea, Timor-Leste, and Singapore in September 2024 and considers it would be appropriate for him to also visit Aotearoa New Zealand to apologise in person to survivors of abuse in care within the Catholic Church.

Kia puta he tohu me te reo whakapahā tūmatawhānui mai i ngā kaitiaki matua ā-whakapono
Public acknowledgements and apologies from other faith leaders

107. The most senior international leaders of faith-based institutions must make public apologies and acknowledge and accept responsibility for the abuse and neglect of survivors in the care of those institutions in Aotearoa New Zealand.

108. The Inquiry acknowledges that Gloriavale Christian Community does not have an international leader, so the Inquiry has directed this recommendation to their most senior leader in Aotearoa New Zealand. Similarly, the Methodist and Presbyterian Churches exist internationally but their governance structure is such that the churches in Aotearoa New Zealand are not officially linked to any international body.

109. This is a new recommendation, which should be considered alongside the Recommendations in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui on public acknowledgements and apologies (Holistic Redress Recommendations 10 and 11).

He reo whakapahā mai i ngā kaiarataki kaupapa tūmatawhānui
Public acknowledgements and apologies by public sector and professional body leaders

110. The Inquiry found that leaders and decision-makers across the public sector, professional bodies, and both direct and indirect care providers have not taken accountability for decisions, policies and practices their organisations implemented that contributed to children, young people and adults in State care experiencing abuse and neglect. Jonathan Mosen (Pākehā, Blind), a survivor who attended Homai School in Tamaki Makaurau Auckland in the 1980s, told the Inquiry that:

“In 2002 I became the Chair of the Board of the Blind Foundation. One of my aspirations in that role was to have the organisation come to terms with a past that has been very empowering for a lot of blind kids but also has serious dark sides … I had people on the Board that said you cannot impose today’s values on what happened then.”[42]

111. Public sector agencies and professional bodies must take concerted action to demonstrate that their apologies are sincere and genuine and recognise that there is significant work to do to if they wish to rebuild any trust with survivors, due to the horrific abuse perpetrated in their care and in many cases the years of denial that followed.

112. This is a new recommendation, which should be considered alongside the recommendations in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui on public acknowledgements and apologies (Holistic Redress Recommendations 10 and 11).

Tūtohi 3 | Recommendation 3

Public acknowledgments and apologies for historical abuse and neglect in the care of the State (both direct and indirectly provided care) and faith-based institutions should be made to survivors, their whānau and support networks by:

a. the most senior leaders of all faith-based institutions, and in particular and without limitation:

i) the Pope should make a public apology and acknowledgement for the abuse and neglect in the care of the Catholic Church in Aotearoa New Zealand
ii) the Archbishop of Canterbury should make a public apology and acknowledgement for the abuse and neglect in the care of the Anglican Church in Aotearoa New Zealand and Polynesia
iii) the President Elect should make a public apology and acknowledgement for the abuse and neglect in the care of the Methodist Church of New Zealand
iv) the Moderator of the Presbyterian Church of Aotearoa New Zealand should make a public apology and acknowledgement for the abuse and neglect in the care of the Presbyterian Church of Aotearoa New Zealand
v) the Chief Executive Officer (or equivalent) of each individual Presbyterian Support Organisation should make public apologies and acknowledgements for abuse and neglect in the care of their respective Presbyterian Support organisation
vi) the General of The Salvation Army should make a public apology and acknowledgement for the abuse and neglect in the care of The Salvation Army of New Zealand, Fiji, Tonga and Samoa Territory
vii) the Overseeing Shepherd should make a public apology and acknowledgement for the abuse and neglect in the care of Gloriavale Christian Community
viii) the Governing Body of Jehovah’s Witnesses should make a public apology and acknowledgement for the abuse and neglect in the care of Jehovah’s Witnesses in New Zealand

b. public sector leaders, including the Public Service Commissioner, the Solicitor-General, the Commissioner of NZ Police and the Chief Executives of Oranga Tamariki, the Ministry of Social Development, the Ministry of Health and the Ministry of Education
c. the leaders of relevant professional bodies, including the Royal Australian and New Zealand College of Psychiatrists, the Medical Council of New Zealand, the Aotearoa New Zealand Association of Social Workers, the New Zealand Nurses Association and the Teaching Council of Aotearoa New Zealand
d. the leaders of all direct and indirect care providers, including Blind Low Vision NZ and IHC.

Each public apology should be:

a. developed and agreed with a representative group of survivors
b. be consistent with the puretumu torowhānui system and scheme and the Holistic Redress Recommendations from the Inquiry’s interim report, He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui.

St John of God Order ki Pāpua Niu Kini
St John of God Order in Papua New Guinea

113. Some brothers who were at Marylands School were transferred from Aotearoa New Zealand to minister in Australia and Papua New Guinea.[43] The Hospitaller Order of the Brothers of St John of God confirmed that of the 25 brothers in the Oceania branch as at September 2021, eight brothers are currently ministering in Papua New Guinea.[44] Included in this group were:

a. Brother Roger Moloney, who was convicted of sexually abusing children at Marylands. Brother Roger Moloney faced 30 charges at trial relating to 11 complainants and was convicted of seven charges of doing and inducing indecent acts on five complainants[45]
b. Brothers Raymond Garchow and Thaddeus (William Lebler), who were charged with numerous accounts of sexual abuse but due to their ill health never went to trial. Brother Raymond Garchow faced 16 charges in relation to two complainants. A stay of proceedings was issued in relation to the charges. One complainant was in ill health, and the charges in relation to the remaining complainant were dismissed, as the judge found that the complainant was open to suggestibility and his evidence could not be relied upon. In addition, Brother Garchow himself was in poor health.[46]

114. Authorities in Aotearoa New Zealand and Australia have investigated the abuse and neglect that occurred in facilities operated by the Order or have investigated and prosecuted abusive brothers themselves, as circumstances allowed. But to the Inquiry’s knowledge, no such investigations have occurred in Papua New Guinea and the Inquiry holds grave concerns for children, young people and adults who were placed in the care of the Order and its brothers.

115. This is a new puretumu torowhānui (holistic redress) Recommendation, which should be considered alongside the Recommendations in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui on public acknowledgements and apologies (Holistic Redress Recommendations 10 and 11).

Tūtohi 4 | Recommendation 4

The Catholic Church’s principal representative in Aotearoa New Zealand, the Archbishop of Wellington and eighth ordinary of the see, should write to the Pope and the Congregation for the Institutes of Consecrated Life and Societies of Apostolic Life:

a. expressing concern that brothers in the Hospitaller Order of the Brothers of St John of God who have been accused or convicted of sexual abuse and neglect in Australia and Aotearoa New Zealand have also been sent to Papua New Guinea, and little is known about the nature and extent of abuse and neglect there or the needs of potential survivors
b. seeking an Apostolic visitation into the nature and extent of abuse and neglect by the Order in Papua New Guinea and the systemic factors leading to abuse and neglect by the Order in the Oceania province.

The letter should be developed and agreed with a representative group of survivors. The letter and report from the Pope and the Congregation for the Institutes of Consecrated Life and Societies of Apostolic Life should be made public.

Kia tirohia anō te tika o te whakahua ingoa huarahi, kaupapa tūmatawhānui rānei, kua tohia mo tētahi kaitūkino kua kitea i te hē
Review the appropriateness of street names, public amenities named after a proven perpetrator

116. Many survivors have called for the removal of any honours awarded to, or memorials to, perpetrators of abuse and neglect in care.[47] In He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, the Inquiry recommended that the Crown, indirect State care providers and faith-based institutions “should consider…removing memorials to perpetrators” (Holistic Redress Recommendation 71).[48]

117. The Inquiry also considers there should be a review of the names of any street, public place (e.g. a reserve), public amenity (e.g. town hall, public reserve), or institution (e.g. a church or school) named after a proven perpetrator of abuse and neglect in care, or that otherwise has a clear association with a perpetrator or institution where proven abuse and neglect took place. The same applies to any memorials that otherwise depict, recognise or celebrate a proven perpetrator of abuse and neglect in care. The review should consider whether any such names should be changed and if any other steps should be taken to address harm caused to survivors by the memorialisation of the perpetrators of abuse and neglect against them and the places where it happened.

118. This is a new recommendation, which should be considered alongside the recommendations in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui on public acknowledgements and apologies (Holistic Redress Recommendations 10 and 11).

Tūtohi 5 | Recommendation 5

All entities that provide care, or have provided care, directly or indirectly on behalf of the State and faith-based entities, local authorities and any other relevant entities should:

a) review the appropriateness of any streets, public amenities, public honours or memorials named after, depicting, recognising or celebrating a proven perpetrator of abuse and neglect in care and/or an institution where proven abuse and neglect took place.
b) consider what steps may be taken to change the names and what else should be done to address the harm caused to survivors by the memorialisation of proven perpetrators and institutions where abuse and neglect took place.

He whakatau kawengā-ā-hara mo tētahi i ngā mahi tūkino, parahako, patu tāngata rānei
Take steps to determine liability for torture, or cruel, inhuman or degrading treatment or punishment

119. The Inquiry does not have the power to determine whether any person or institution is legally responsible (i.e. liable under civil or criminal law, or in a disciplinary sense) including for acts such as torture. However, it can recommend that further steps be taken to determine liability.

120. During the Inquiry period, there was evidence in many care settings indicating acts of abuse and neglect that may have elements of torture, or cruel, inhuman, or degrading treatment or punishment. The use of electric shocks and paraldehyde as punishment at the Lake Alice Child and Adolescent Unit met the definition of torture as stated by the Solicitor-General. The Inquiry’s findings in relation to Te Whakapakari Youth Programme, Marylands School and Hebron Trust, Hokio Beach School and Kohitere Boys’ Training Centre, Kimberley Centre, Van Asch and Kelston deaf schools give rise to concerns about these matters too.

121. The United Nations Convention against Torture requires Aotearoa New Zealand to carry out a prompt and impartial investigation wherever there are reasonable grounds to believe that torture or cruel, inhuman or degrading treatment or punishment has occurred in places under its jurisdiction.[49] As referred to in the Inquiry’s interim report Stolen Lives, Marked Souls, the United Nations Committee Against Torture has concluded that international legal obligations to investigate alleged torture may apply regardless of whether the alleged acts of torture occurred before or after the State ratified the applicable human rights treaty.[50]

122. Aotearoa New Zealand has recognised the international legal right to be free from torture and cruel, inhuman or degrading treatment or punishment since 1978 when it ratified the International Covenant on Civil and Political Rights. Those subjected to breaches of their right to be free from torture and cruel, inhuman or degrading treatment or punishment have a right to effective redress for those breaches.[51]

123. Acts of abuse and neglect of this nature may constitute breaches of Aotearoa New Zealand’s criminal and civil law. Investigating these acts (including the systemic factors that contributed to these occurring), holding those responsible to account, and providing redress to survivors is the right thing to do.

124. Allegations of abuse and neglect must be considered from a human rights perspective. Serious abuse and neglect, including but not limited to sexual abuse and neglect, may well amount to torture or cruel, inhuman or degrading treatment or punishment. Allegations of serious abuse and neglect need to be investigated and otherwise addressed based on that understanding.

125. NZ Police must work proactively to ensure that survivors, their whānau and support networks know about investigations into possible torture or cruel, inhuman or degrading treatment or punishment in State or faith-based care. This should include communication and advertising that is culturally appropriate and tailored to survivor needs to take account of barriers that may prevent people from contacting NZ Police.

Tūtohi 6 | Recommendation 6

Where there are reasonable grounds to believe that torture, or cruel, inhuman or degrading treatment or punishment have occurred in care directly or indirectly on behalf of the State or faith-based entities, and the relevant allegations have not been investigated by NZ Police or credible new information has arisen since the allegations were investigated, NZ Police should:

a) open or re-open independent and transparent criminal investigations into possible criminal offending
b) proactively and widely advertise the intent to investigate and ongoing investigations
c) provide appropriate assistance and support to survivors, their whānau and support networks who contact them in relation to the investigations.

Tūtohi 7 | Recommendation 7

Where there are reasonable grounds to believe that torture, or cruel, inhuman or degrading treatment or punishment have occurred in care, the State, faith-based institutions and indirect care providers should:

a) provide reasonable assistance to any NZ Police investigation
b) take all reasonable steps to ensure an impartial and independent investigation is carried out by an appropriate investigator
c) if there is credible evidence of breaches of the law (including breaches of human rights), ensure that appropriate redress is provided to the survivors, consistent with applicable domestic and/or international obligations
d) use best endeavours to have the liability of every relevant institution in relation to such acts determined. This may include:

i) seeking opinions from King’s Counsel, which are then shared with relevant survivors, on the nature of the conduct and the liability of relevant institutions, including as applicable under the New Zealand Bill of Rights Act 1990. Consideration may also be given to seeking declaratory judgments from the courts. Survivors should be fully supported to take part in these initiatives, including with funding for legal and other expenses
ii) not pleading limitation defences in cases brought by survivors, for as long as limitation defences remain available.

He whakapai ake i ngā kaupapa tiaki purapura ora i pākia i ngā mahi tūkino i ngā pūnaha taurima
Improving redress processes for survivors of abuse and neglect in care

126. The recommendations set out below build on the recommendations in the Inquiry’s interim report He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, and should be read alongside those recommendations. The Inquiry notes that if the government were to decide to implement an alternative redress system and scheme, the recommendations below would apply to it also.

127. Recommendations 8–21 respond to clause 32(b) of the Inquiry’s Terms of Reference, which relates to changes to redress processes for individuals who have been abused in State or faith-based care.

He tohe tonu i ngā kaitiaki kaupapa-ā-whakapono me te hunga kaitiaki kei waho i ngā kaupapa kāwanatanga kia uru ki raro i te kaupapa pūnaha puretumu
Ensure faith-based institutions and indirect State care providers join the puretumu torowhānui system and scheme

128. In He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, the Inquiry recommended that the new redress scheme should be open to all survivors of abuse and neglect in care, regardless of whether the abuse and neglect occurred in a State, indirect state, or faith-based institution.[52] The reasons for this included ensuring consistency and fairness, and ensuring that survivors abused or neglected in more than one institution do not have to make multiple redress claims (reducing traumatisation).

129. The Inquiry referred to some institutions taking a long time to join the Australian National Redress Scheme and the steps taken in response to that.[53] The Inquiry recommended that faith-based institutions and indirect State care providers be given a reasonable opportunity (for example, four to six months) to join the scheme (Holistic Redress Recommendation 21). The Inquiry also recommended that, following that period and if necessary, the Crown should consider options to encourage or compel participation.[54]

130. The Inquiry remains of the view that it is critical for the puretumu torowhānui system and scheme to be universal to ensure that all institutions where people have suffered abuse and neglect are held accountable for the harm that has occurred. The Inquiry no longer considers it appropriate for participation in the system and scheme to be voluntary.

131. All faith-based institutions and indirect care providers must work proactively to ensure that survivors, their whānau and support networks know about the puretumu torowhānui system and scheme, know how to seek redress, and know about the support options available to them.

Tūtohi 8 | Recommendation 8

The government should take all practicable steps, including incentives and, if necessary, compulsion, to ensure that faith-based institutions and indirect care providers immediately join the puretumu torowhānui system and scheme once it is established.

Tūtohi 9 | Recommendation 9

Representatives of faith-based institutions and indirect care providers should meet with relevant State representatives and agree on what steps they can take, whether separately or together, to ensure that survivors, their whānau and support networks are made aware of the puretumu torowhānui system and scheme and the support options available to them.

He whakahoki i te mana o te kaupapa pūnaha puretumu torowhānui mai i te Tīhema 2021
Backdate eligibility for the puretumu torowhānui system and scheme to December 2021

132. The Inquiry is concerned that survivors have died waiting for the urgent interim payments that were recommended in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, and that the government is continuing to take a liability limitation approach before the puretumu torowhānui system and scheme is set up.

133. To account for this, eligibility for the scheme should be retrospective to include the whānau of survivors who were alive at the date on which Inquiry's He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui report was delivered (1 December 2021) but have since died.

134. The Inquiry reiterates the previous recommendation in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui (Holistic Redress Recommendation 18) that the scheme must be open to all survivors, including those who have been through previous redress processes (including processes/settlements finalised at any time before the puretumu torowhānui system and scheme is established).

Tūtohi 10 | Recommendation 10

The government and faith-based institutions should ensure that once the puretumu torowhānui system and scheme is established:

a) the effective start date for the system and scheme is 1 December 2021, to enable the whānau of survivors who have died since that date to be eligible for redress claims and the full range of support services available through the system and scheme
b) it is open to all survivors, including those who have been through all redress processes (including those that have been completed since 1 December 2021), whether or not any signed settlement agreement was full and final.

Me whakatau he utu ki ngā purapura ora i pākia e ngā mahi tūkino i roto i ngā pūnaha taurima
Compensate survivors of abuse and neglect in care

135. The Inquiry has recorded its concerns about survivors not having access to an effective remedy for abuse and neglect in care, including compensation.

Me hāngai te ōha utu ki te āhua o te mahi tūkino
Payments should provide meaningful recognition of abuse and neglect

136. In He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, the Inquiry found that existing payments in State and faith-based claims processes for abuse and neglect in care did not provide meaningful redress and were plainly insufficient.[55] State payments lacked a principled basis and were comparatively low, ranging from $6,000 to $20,000 per survivor, especially compared with overseas schemes.[56] Faith-based institutions offered slightly higher averages than State payments, around $30,000, but still fell short of meaningful redress.[57]

137. The Inquiry reiterates its previous recommendation that financial payments by the puretumu torowhānui system and scheme should provide meaningful recognition of the abuse and neglect suffered, and its impact, but not compensation for harm or loss (Holistic Redress Recommendation 40). Although it did not set out specific payment amounts, the Inquiry stated that achieving this would require substantially higher payments than had been paid by the State and faith-based institutions before He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui was released in December 2021.[58]

138. In Part 8, the Inquiry set out its concerns that the indicative cost scenarios included in the 1 December 2022 Cabinet paper on parameters for a new government redress scheme were based on domestic and international comparators at the lowest end of the range.

139. The Inquiry reiterates its previous recommendation setting out the matters that should be considered in determining the size of payments, including that they should compare favourably with overseas schemes (Holistic Redress Recommendation 41).[59] It will also be important to factor in matters such as inflation since the maximum amounts available in overseas schemes were set. Another relevant comparison will be the Dilworth Redress Programme established in 2022 and payments made under that scheme, which is discussed in Part 8.

Ngā whakatau hei panoni ture tikanga ā-iwi
Alternative to civil litigation reform recommendations

140. In Part 8, the Inquiry set out its concerns that the civil litigation reforms the Inquiry recommended in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui (Holistic Redress Recommendations 75 and 78) have not been implemented. These were:

a. establishing a statutory right to be free from abuse and neglect in care and a related duty to protect that right
b. an exception to the accident compensation (ACC) bar so that survivors of abuse and neglect in care can seek compensation in the courts by taking civil cases
c. removing statutory limitation periods for abuse and neglect in care cases.[60]

141. The Inquiry included alternative recommendations (Holistic Redress Recommendation 76) if the government decided not to proceed with its civil litigation reform recommendations. One of these was that the Crown should consider empowering the new puretumu torowhānui system and scheme to award compensation. The other was that the Crown consider reforming the accident compensation (ACC) scheme so that it covers the same abuse and neglect as the new scheme and provides fair compensation and other appropriate remedies for that abuse and neglect.[61] The Inquiry is also not aware of any steps being taken on its alternative recommendations.

142. Survivors must have access to an effective remedy. In He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, the Inquiry explained why it did not consider that either of the alternative recommendations was the best option. The Inquiry remains of that view. The Inquiry also said that the required reform to the accident compensation (ACC) scheme would be considerable.[62] That remains the case. However, if the government does not implement its civil litigation reform recommendations, then the Inquiry recommends accident compensation (ACC) reform.

143. The recommendation below expands on, and replaces, Holistic Redress Recommendation 76 in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui.

Tūtohi 11 | Recommendation 11

If the government does not progress the Inquiry’s recommended civil litigation reforms (Holistic Redress Recommendations 75 and 78 from the Inquiry’s interim report, He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui):

a) the government should reform the accident compensation (ACC) scheme to provide tailored compensation for survivors of abuse and neglect in care and other appropriate remedies
b) survivors should be fairly and meaningfully compensated for all direct and indirect losses that flow from the abuse and neglect they experienced in care and that are covered by the new puretumu torowhānui system and scheme
c) the application process should be survivor-focused, trauma-informed and delivered in a culturally and linguistically appropriate manner.

He whakatau motuhake mō te Order of the Brothers of St John of God
Order of the Brothers of St John of God specific actions

He āwhina i ngā purapura ora ō St John of God mai te kura o Marylands me ngā kaitiaki o Hebron ki te toro i ngā whakahaere puretumu
Assisting St John of God survivors from Marylands School and Hebron Trust with the redress process

144. The Inquiry found that the Order’s redress to survivors through its pastoral process had the potential to transform the lives of those traumatised by their abuse and neglect but that the retraction of the pastoral process in 2004 caused further harm.[63]

145. The Inquiry’s interim report Stolen Lives, Marked Souls, included evidence from Cooper Legal, the law firm acting for many Marylands and Hebron Trust survivors. Cooper Legal set out its experience with the Order’s redress process in 2022, stating that the Order’s lawyers raised technical legal issues relating to the Limitation Act, accident compensation, and proof issues, especially in relation to Hebron Trust-related claims.[64]

146. Cooper Legal also stated that settlement documentation in 2022 required survivors to warrant that all material and/or relevant acts, facts and circumstances including “all abuse suffered by [the survivor] at any time has been disclosed and forms part of the claim”. This approach does not acknowledge that survivors often incrementally disclose the abuse they suffered. In addition, the settlement deeds include confidentiality clauses, which the Order has previously said would not be required.[65]

147. The Inquiry also found that the Bishop of Christchurch failed to ensure the Order responded adequately to reports of abuse and claims for redress from 1993 and appeared to be mostly concerned with minimising any harm to the Catholic Church’s reputation.

148. The Inquiry acknowledges the steps taken by Te Rōpū Tautoko to improve its redress processes, including the establishment of the Tautoko Roadmap.[66] The Inquiry also acknowledges, as part of the Tautoko Roadmap, the ten commitments made to abuse and neglect survivors issued on 10 January 2023 by the Bishops and Congregational Leaders of the Catholic Church in Aotearoa New Zealand.[67] These developments do not impact the Order’s current redress process.

149. The Inquiry’s Marylands School (St John of God) Hearing in February 2022 and the release of Stolen Lives, Marked Souls in July 2023 will likely be a catalyst for new claims or requests to reopen or reassess claims of those alleging abuse and neglect while in the care of the Order.

150. The Inquiry does not have confidence in the Order’s current redress process. Although progress is being made through the development and implementation of the Tautoko Roadmap, without an independent oversight function, interim steps should be taken to respond to new claims or requests to reopen or reassess claims of those alleging abuse and neglect while in the care of the Order.

Tūtohi 12 | Recommendation 12

The Bishop of the Diocese of Christchurch should write to the Provincial of the Oceania Province of the St John of God Brothers seeking:

a. regular notifications of all new reports of abuse and neglect in Aotearoa New Zealand received by the Order of the Brothers of St John of God (subject to complainants’ consent)
b. regular notifications of all requests to reopen or reassess claims involving Aotearoa New Zealand survivors
c. the Order’s response to all such reports and requests.

All correspondence should be made public, together with an explanation of the steps taken in response.

Ngā mahi tautoko puretumu a ngā kaitiaki o te Hāhi Kātorika, te Order me te Kāwanatanga, i ngā purapura ora
Survivor supports provided by the Catholic Church, the Order and State representatives about the redress and support available

151. The Inquiry’s Stolen Lives, Marked Souls report noted that there are limitations to the Catholic Church’s abuse data and that the data cannot give a complete picture as it only includes reported abuse.[68] As stated in Stolen Lives, Marked Souls, much abuse goes unreported, because of the significant barriers to survivors reporting abuse while in the care of faith-based institutions, including the Catholic Church. The level of disability of some of the boys at Marylands and the isolation from whānau and peers for children and young people associated with Hebron Trust was likely to be a further barrier to reporting.[69] At times, when a report was made, it may not have been recorded. The Report treated the abuse data as indicative, likely revealing only the tip of the iceberg of the number of children and young people at Marylands and Hebron Trust who were actually abused or the true amount of abuse and neglect that was inflicted on them.[70]

152. The report also found the Order has never proactively sought out survivors who attended Hebron Trust facilities and offered help or puretumu torowhānui (holistic redress). Neither has the Catholic Church, the Order, any successive bishop or Catholic Church entity.[71]

153. Given the known barriers to reporting abuse and neglect and the amount of abuse and neglect that has likely gone unreported, there is a need for guidance and consistent messaging by the Catholic Church, the Order and State representatives about the redress and support available to all survivors of Marylands, Hebron Trust and St Joseph’s Orphanage.

154. There are different avenues available to survivors who experienced abuse and neglect while in the care of the Order. Some survivors may be entitled to seek redress from either the Catholic Church, the Order, the Sisters of Nazareth and the Ministry of Social Development or one or more of these institutions and agencies, depending on the circumstances of placement and the types of abuse and neglect suffered.

155. Many of those at Marylands were disabled and a high number of tamariki and rangatahi Māori were in the care of the Hebron Trust. The messaging regarding the redress and support available needs to be culturally appropriate and tailored to survivor needs to take account of barriers that may prevent people from seeking redress.

Tūtohi 13 | Recommendation 13

The Bishop of Christchurch, the Provincial of the Oceania Province of the St John of God Brothers and relevant State representatives should meet and agree on what steps they can take, whether separately or together, to ensure all survivors of Marylands School, St Joseph’s Orphanage and Hebron Trust in Ōtautahi Christchurch and their whānau or support networks are made aware of the new puretumu torowhānui system and scheme and the support options available to them.

He whakamana i te Tiriti o Waitangi ki roto i te kaupapa pūnaha puretumu torowhānui
Give effect to te Tiriti o Waitangi in the puretumu torowhānui system and scheme

156. As discussed in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, for many Māori, restoration of tino rangatiratanga over whānau, hapū, iwi and kāinga is seen as a critical step towards any effective redress for abuse and neglect in care. Since the Inquiry period, incremental changes have been made by the State to recognise te Tiriti o Waitangi and its principles, particularly through incorporating them into law and policy. In the Inquiry’s view, a significantly greater focus on the rights guaranteed under te Tiriti o Waitangi and its principles is required.

157. In its interim report He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, the Inquiry recommended that the puretumu torowhānui system and scheme, and those designing and operating it, should give effect to te Tiriti o Waitangi, in particular the right to tino rangatiratanga (Holistic Redress Recommendation 2).

Tūtohi 14 | Recommendation 14

The government should ensure that the puretumu torowhānui system and scheme is designed and operated in a manner that gives effect to te Tiriti o Waitangi and its principles.

He whakatō i ngā mōtika tangata ki roto i te kaupapa pūnaha puretumu torowhānui
Embed human rights into the puretumu torowhānui system and scheme

158. Aotearoa New Zealand’s international human rights obligations are relevant to care, including the status of those receiving care as rights-holders. These rights and obligations extend to survivors of abuse and neglect in State and faith-based care, their whānau and support networks. The following recommendations should be read together and form a basis to ensure that the design and operation of the puretumu torowhānui system and scheme is underpinned by human rights principles.

159. The human rights of survivors, their whānau and support networks, and the corresponding obligations under the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, the United Nations Declaration on the Rights of Indigenous Peoples and the Convention on the Elimination of All Forms of Discrimination against Women should underpin the design and operation of the puretumu torowhānui system and scheme.

160. Part of realising these rights includes addressing any barriers that may impact on people’s ability to communicate their needs and participate fully in decisions that affect them. For Deaf, disabled people, and people experiencing mental distress, communication assistance could include augmentative and alternative communication devices, alternate formats, and supported decision-making. Māori, Pacific peoples and others from linguistically or culturally diverse backgrounds may face additional barriers. Communication assistance could include, for example, te reo Māori sign language interpreters, and support people with appropriate cultural and language competency.

Tūtohi 15 | Recommendation 15

The government should ensure that the puretumu torowhānui system and scheme is designed and operated in a manner consistent with:

a) upholding the rights of Māori as indigenous peoples of Aotearoa New Zealand in accordance with United Nations Declaration on the Rights of Indigenous Peoples
b) upholding the rights of Māori, Pacific peoples, and people from other linguistically or culturally diverse backgrounds, in accordance with the Convention on the Elimination of All Forms of Racial Discrimination
c) upholding the rights of girls and women, in accordance with the Convention on the Elimination of All Forms of Discrimination against Women
d) upholding the rights of Deaf, disabled people, and people who experience mental distress in accordance with the Convention on the Rights of Persons with Disabilities and the Enabling Good Lives principles, including:

i) recognition that Deaf, disabled people and people who experience mental distress in care have:

- the same rights as others to make decisions that affect them, including adults having decision-making supports as appropriate
- the right to access and use supports (including communication assistance) in making and participating in decisions that affect them, communicating their will and preferences, and developing their decision-making ability
- access and use advocacy services in making and participating in decisions, and communicating their will and preferences

ii) recognition that tāngata Turi, tāngata whaikaha and tāngata whaiora Māori and Pacific survivors who are Deaf, disabled or experience mental distress, survivors from other culturally or linguistically diverse backgrounds, and Takatāpui, Rainbow and MVPFAFF+ survivors may experience barriers to engaging with the system and scheme due to cultural, language and other differences, and that these barriers need to be addressed

e) upholding the rights of children, and ensuring that all parties involved in the design and operation of the system and scheme:

i) act with the best interests of the child as a primary consideration, consistent with the United Nations Convention on the Rights of the Child
ii) recognise the rights of iwi, hapū and whānau Māori to retain shared responsibility for the wellbeing of tamariki and rangatahi Māori, consistent with the United Nations Declaration on the Rights of Indigenous Peoples.

He waihanga tohu tika ā-tangata i roto i ngā pūnaha puretumu torowhānui
Establishing human rights indicators for the puretumu torowhānui system and scheme

161. In the Inquiry’s view government should establish performance indicators to measure human rights performance for the puretumu torowhānui system and scheme, assist in identifying gaps and other issues, promote human rights consistent decision-making and conduct in care, and increase the visibility of human rights in care.

162. Indicators are used to assess and monitor human rights realisation in care. The Office of the United Nations High Commissioner for Human Rights has issued guidance on human rights indicators.[72] Indicators could include, for example, the number of complaints reported to care providers during an annual reporting period alleging breach of the right to security of the person and the number of those complaints that were resolved within a year of being made. Further indicators could include the number of those complaints that were upheld and the number of complainants with upheld complaints who received effective redress.[73]

163. The process of choosing indicators involves considering which human rights are relevant to the puretumu torowhānui system and scheme, how those human rights apply in practice to care settings, and the information required in Aotearoa New Zealand to measure over time whether applicable human rights obligations are being met or not. They should also give effect to te Tiriti o Waitangi principles and provide a measure for how the Crown’s te Tiriti o Waitangi obligations are being met. Te Kāhui Tika Tangata Human Rights Commission’s indicators for the right to adequate housing in New Zealand, including the process it followed to choose relevant indicators, provide a useful example of how this work could be done.[74]

164. This will require government, other entities involved in care, survivors and other interested groups to analyse and make transparent decisions on how broad human rights standards and te Tiriti o Waitangi principles apply to care in this country, and to revise those decisions periodically. It will also result in the establishment of an Aotearoa New Zealand-specific human rights framework for care, which the Inquiry found was lacking during the Inquiry period. It will also support Aotearoa New Zealand’s international reputation as a champion of human rights.

165. Once established, the government should publish these indicators and provide regular public reporting against their progress.

Tūtohi 16 | Recommendation 16

The government should establish performance indicators for the puretumu torowhānui system and scheme, based on New Zealand’s domestic and international obligations including te Tiriti o Waitangi and taking into account guidance from the Office of the United Nations High Commissioner for Human Rights.

Tūtohi 17 | Recommendation 17

The government should regularly assess the puretumu torowhānui system and scheme against the performance indicators and publish annual reports on progress against the indicators.

Tirohia anō mehemea kei te ōrite ngā whakatau mō Lake Alice
Review Lake Alice settlements for parity

166. The Inquiry’s interim report Beautiful Children: Inquiry into the Lake Alice Child and Adolescent Unit referred to the differing amounts received by survivors in the first round and second round of Crown settlement processes. Claimants who settled as part of the first round had a percentage deducted for legal fees while those who settled during the second round did not.[75] Relevant to this was a 2002 judgment by the District Court, which found that a claimant who settled during the second round was entitled to receive a sum that did not include a deduction for legal fees.[76]

167. The Solicitor-General said to this Inquiry that “although the Government attempted to achieve equity between the two rounds, this was poorly executed”.[77] This has left most claimants who settled during the first round with an ongoing sense of grievance.[78] The inequity needs to be addressed. The Inquiry thinks that a specific, independent review is required. The review should be empowered to make recommendations on steps to achieve parity between first and second round claimants. This should include matters such as whether any further payments should be made to claimants who settled during the first round and whether interest should be added to any such payments. Claimants who have not yet received redress should receive payments on a par with the second round claimants.

168. All claimants (whether they have previously settled or not) and survivors who have not submitted claims in respect of their treatment at Lake Alice will be eligible for the new puretumu torowhānui system and scheme and the redress available through that scheme (Recommendation 1).

Tūtohi 18 | Recommendation 18

The government should:

a) appoint an independent person to promptly review all Lake Alice settlements and advise whether any further payments to claimants who have previously settled are necessary to ensure parity in light of the District Court decision in 2002 regarding the deduction of money from second round claimants for legal costs
b) ensure that any payments to claimants who have not yet settled are, as a minimum, equitable in light of the review.

Whakatūria he arotakenga motuhake mō ngā poka ingoa kore me ngā urupā
Establish an independent investigation of unmarked graves and urupā

169. The Inquiry heard from many people who could not find the graves of whānau members who had died in care. The Inquiry also noted that calls had been made for an investigation of potential unmarked graves and urupā at psychiatric hospitals and psychopaedic sites.[79]

170. In He Purapura Ora, he Māra Tipu, the Inquiry recommended the government consider resourcing a national project to carry out this investigation and to connect whānau of those found to be buried in these sites (Holistic Redress Recommendation 72). This included a recommendation that Government support tāngata whenua who wish to heal or whakawātea the whenua where this occurred.[80] As set out in Part 8, the Inquiry is not aware of any steps taken to implement this recommendation. It is therefore necessary to move from recommending that the government consider this action, to directing the government to act urgently.

171. The Inquiry envisages that the independent body will develop culturally appropriate policies and procedures for the search for unmarked graves and urupā, and the repatriation of remains if requested by whānau. These must be jointly developed by government and Māori in accordance with te Tiriti o Waitangi, as well as co-designed with communities in line with implementation Recommendations 126—127. The United Nations Declaration on the Rights of Indigenous Peoples provides guidance on search, recovery, access, repatriation and commemoration in relation to remains and burial sites.[81] Funding for the independent body must include funding for culturally appropriate repatriation, if requested by whānau.

Tūtohi 19 | Recommendation 19

The government should appoint and fund an independent advisory group to investigate potential unmarked graves and urupā at the sites of former psychiatric and psychopaedic hospitals, social welfare institutions or other relevant sites.

Whakatū tahua pūtea mo ngā kaupapa e hāngai ana ki ngā parurenga i hua ake i ngā mahi tūkino katoa i pā ki te hunga i roto i ngā pūnaha taurima
Establish a fund for projects connected to community harm arising from the cumulative impact of abuse and neglect in care

172. He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui noted that further recommendations would be made on the extent to which whānau of survivors could independently apply to the puretumu torowhānui system and scheme, and on how the puretumu torowhānui system and scheme could facilitate other forms of collective redress.[82]

173. The Inquiry considers that collectives could be seen in a number of ways, including, but not limited to:

a. whānau, hapū and iwi
b. other Māori collectives (e.g. urban Māori authorities)
c. Pacific collectives (for example communities, that identify with a particular Pacific nation), church communities, and school communities
d. disabled and mental health communities
e. the Deaf community
f. survivors who attended a particular State or faith-based facility
g. communities where State or faith-based care facilities were located
h. survivors from faith communities (e.g. Gloriavale)
i. Takatāpui, Rainbow and MVPFAFF+ communities.

174. The impacts of being placed into and abused or neglected in State and faith-based care are not only felt by individual survivors, but also collectively and intergenerationally by their whānau and communities. This has also created collective mamae (hurt) and whakamā (shame). It has led to many Māori survivors having limited knowledge of their whakapapa and being disconnected from their culture and identity because of what they experienced. It has led to tamariki, partners, whānau, hapū, iwi and hāpori (communities) being exposed to mental and physical health issues, drug and alcohol abuse, violence, relationship difficulties and family breakdown. The collective harm suffered can be understood as the harm caused to the relevant collective identity or the collective itself by abuse and neglect in care. This could include:

a. loss of connection to whakapapa or other kinship connections
b. loss of language and/or culture
c. loss of relationships
d. stigmatisation due to association with particular institution(s)
e. impact on whenua with which the collective has a relationship
f. collective whakamā, shame, humiliation, embarrassment or hurt caused by or arising from the abuse of members of the collective, or the impact on the mana of that collective
g. intergenerational trauma
h. impact on the collective’s ability to care for itself, where abuse of its members has been large scale and has therefore affected their ability to care for themselves and their whānau
i. loss of collective cohesiveness
j. loss of leaders or loss of potential for the collective.

He kāpuinga Māori
Māori collectives

175. The Inquiry considered how any collective Holistic Redress Recommendations would apply to Māori collectives, and in particular how any collective redress initiatives would be distinct from the historical Treaty settlement framework.

176. Since the 1990s, over 80 settlements have been completed with iwi and collectives, covering most of Aotearoa New Zealand. Claims are settled for specified ancestral lines and are final. This means that in exchange for the settlement redress, the settlement legislation removes the ability of the courts, the Waitangi Tribunal or any other judicial body or tribunal from reopening and reconsidering the historical claims.

177. The Treaty settlement framework is complex both in how claimant groups are defined and how redress is constructed. The Inquiry does not want any recommendations to cut across this landscape, including the full and final nature of settlements and the fairness between settlements. The Inquiry thinks that recommendations to offer collective redress based on whakapapa would be difficult to implement in practice and would disadvantage Māori who do not have knowledge of their whakapapa. It would also open the question of who would administer any collective redress, whether this would necessitate a change to current governance entities, rūnanga and other Māori governance arrangements, and what form the redress would take. These administrative questions arise for other potential collectives as well.

178. Instead, the Inquiry considers that the most practical way to provide collective redress to all groups is through a model like those used in Canada and Australia to provide affected communities with funding to use on projects related to healing the trauma of abuse in care. Both the Australian and Canadian funds were established with government funding following Royal Commissions of Inquiry in each country.

179. The Canadian Aboriginal Healing Foundation was established in 1998 by the Government of Canada. It aimed to support healing for Aboriginal communities and individuals affected by the legacy of residential schools. Between 1998 and 2014, when its mandate expired, the Foundation supported initiatives focusing on mental health, cultural revitalisation, and reconciliation and emphasised the importance of community-driven projects tailored to local needs.

180. The Australian Healing Foundation, also known as The Healing Foundation, is a national organisation established to address the ongoing trauma experienced by Aboriginal and Torres Strait Islander peoples as a result of colonisation and systemic injustices. The Foundation funds and supports various healing programmes, including trauma-informed care, cultural revitalisation projects and community-driven initiatives. It has noted that “healing is a holistic process, which addresses mental, physical, emotional and spiritual needs and involves connections to culture, family and land. Healing works best when solutions are culturally strong, developed and driven at the local level”.[83]

181. The Healing Foundations in both countries are independent from the State. They both grant funding based on defined criteria and are governed by Boards who are representative of the communities the funding is intended for. Funding amounts are robust relative to the size of the eligible populations. The Canadian fund provided $350 million in 1998 for a First Nations population of 799,910. Australia has committed $26.4 million per year for four years from 2019 for a combined population of 983,700.

182. The Inquiry considers a similar model is appropriate for providing collective redress to communities.

Tūtohi 20 | Recommendation 20

The government and faith-based institutions should jointly establish a fund to provide contestable funding for projects that promote effective community healing from the collective impacts of abuse and neglect in care, similar to those established in Canada and Australia. The entity holding and distributing the funding should be independent from State and faith-based entities.

He utua ā whānau ki ngā whānau purapura ora
Whānau payments for whānau of survivors of abuse and neglect in care

183. The Inquiry received accounts from many who suffered harm as a result of their whānau member’s experiences of abuse and/or neglect in care. The Inquiry recommends addressing the impacts on those living with survivors who are suffering the effects of tūkino from abuse and neglect in care. In determining which whānau members should be eligible, the Inquiry recognises that whānau are extensive and include diverse kinship ties.

184. The Inquiry reviewed international precedents where whānau members could make independent claims for redress. For example, Tasmania’s Stolen Generation programme, starting in 2006, paid biological children of survivors a flat rate of AUD$5,000, up to AUD$20,000 per family. In some cases, whānau inclusion requires the survivor to forfeit their claim. In Canada, the Indian Residential Schools Settlement Agreement’s Personal Credits programme allowed survivors to transfer credits worth CAD$3,000 to children and grandchildren. The Scottish Redress Scheme permits survivors to assign their claim to a beneficiary.

185. The Inquiry evaluated the Tasmanian model, which sets a maximum value per whānau, necessitating the distribution of funds among members, potentially causing issues. Additionally, a maximum cap could be unfair to differently sized whānau. Since each whānau member’s claim is based on the harm they experienced, their claims should be independent. Limiting compensation to biological children does not reflect the diverse make-up of many whānau in Aotearoa New Zealand.

186. Affected whānau members should be able to make claims without relying on the direct survivor’s involvement, subject to privacy considerations. Eligible whānau could include the survivor’s children or other members cared for by the survivor. Those who are both impacted whānau and direct survivors would be eligible for either a whānau harm payment or direct survivor redress, reflecting the different bases for each payment. Standard claims acknowledge tūkino experienced in care, while whānau harm payments recognise intergenerational impacts. However, an affected whānau member would only receive one harm payment regardless of how many survivors cared for them.

187. The Inquiry also considered the potential for using capital investment earnings to fund scholarships or other benefits for whānau, which could be explored in the programme’s future development.

Tūtohi 21 | Recommendation 21

Recognising the intergenerational damage caused by abuse in care, the Inquiry recommends that a whānau harm payment be provided for members of whānau who have been cared for by survivors and thereby potentially impacted by their tūkino, to help prevent further intergenerational harm. The Inquiry recommends this is set at $10,000.

Ngā panonitanga o te wāhanga ā-ture
Justice sector reforms

188. The Inquiry heard from some survivors (who attempted to seek justice, accountability and/or redress for the abuse and/or neglect they suffered) that their interactions with the justice system resulted in additional harm or trauma. These recommendations are directed to making the justice system in Aotearoa New Zealand safer and more accessible for survivors of abuse and/or neglect in care, their whānau and support networks.

189. The following Recommendations 22–38 respond to clause 32(c) of the Inquiry’s Terms of Reference, which relate to recommendations for other appropriate steps the State and faith-based institutions should take to address the harm caused by abuse in care.

Panonihia ngā tikanga whakawhiu-ā-ture
Amend prosecution guidelines

190. The Inquiry reported in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui that survivors consider that holding perpetrators and organisations to account was a crucial part of moving on with their lives.[84] The conviction of a survivor’s perpetrator provides a measure of accountability and justice for the survivor and can also be an important step of the road to healing. The Inquiry found however that very few perpetrators of abuse and neglect of people in care have ever stood before a court to answer for all their actions.[85] During the Inquiry period, survivors who complained to NZ Police and were witnesses in criminal proceedings often had negative and harmful experiences.

191. In the Beautiful Children: Inquiry into the Lake Alice Child and Adolescent Unit report , the Inquiry found that there were grave investigation failures in three investigations conducted by NZ Police between 1977 and 2021.[86] These included that NZ Police failed to contact and interview complainants, failed to investigate serious sexual offending, accepted at face value the perpetrator’s account,[87] and did not obtain an expert psychiatric opinion from someone unconnected to Lake Alice.[88] The Inquiry has heard many other accounts from survivors of abuse in care that they were simply not believed by NZ Police if they did complain.

192. The Solicitor-General’s suite of prosecution guidelines apply to all public prosecutions, including those conducted by Crown Prosecutors and NZ Police.[89] The Inquiry considers that the guidelines require review and amendment to ensure that there is better oversight and consistency of investigations, charging decisions, and how charges are prosecuted.

Me whai wāhi ngā ture o te ao whānui hei taki wherawhera me te whakatau whiu
International instruments must be considered in investigations and in prosecution decisions

193. In December 2019, the United Nations Committee Against Torture found that Aotearoa New Zealand was in breach of the Convention against Torture for failing to ensure a prompt and impartial investigation into Lake Alice.[90] The Inquiry concluded that the use of electric shocks and paraldehyde to punish children and young people at Lake Alice met the definition of torture. The Inquiry also found that the Crown failed to consider whether the abuse and neglect at Lake Alice could amount to torture.[91]

194. As the Inquiry reported in Stolen Lives, Marked Souls,[92] there are other international obligations, including the need to ensure that no child is subjected to cruel, inhuman or degrading treatment or punishment.[93]

195. All international obligations adopted by Aotearoa New Zealand should be considered during criminal investigations, and when decisions are made about whether to charge a person, and other prosecution decisions. These obligations should be considered at every step of the prosecution process, including when considering the victims of crime. All prosecution guidelines issued by the Solicitor-General should be amended to ensure they are consistent with Aotearoa New Zealand’s human rights obligations including the United Nations Convention on the Rights of Persons with Disabilities, the United Nations Convention on the Rights of the Child, and the United Nations Convention on the Rights of Indigenous Peoples.

Whakaara i ētahi atu raupapa hei kōwhiri i ngā kōrero taunaki ā ngā purapura ora
Include further criteria for assessing credibility of survivor evidence

196. The prosecution guidelines require NZ Police and prosecutors to consider the credibility of a survivor’s evidence under the Evidential Test when initiating or continuing a prosecution. “Credible” is defined as capable of belief.[94]

197. In He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, the Inquiry found that survivors’ credibility in the eyes of NZ Police was critical to decision making.[95] Allegations made by survivors who had criminal convictions or had been in psychiatric institutions were often treated with scepticism or disbelief. Many survivors told the Inquiry that NZ Police did not investigate their complaints because they were uninterested, were under resourced, considered it a hassle, or did not believe the complainant. In some cases, this happened despite admissions of guilt from the abusers.[96] NZ Police investigating allegations at Lake Alice adopted a biased attitude against those who had been admitted to the unit, treating them as unreliable and troublesome. Conversely, NZ Police assumed staff who were accused of serious crimes were well-meaning and dedicated professionals.[97]

198. When considering the credibility (and creditability) of a complainant’s evidence, NZ Police and prosecutors must recognise the potential for bias. They should ensure they obtain sufficient information (including expert advice where appropriate) on what accommodations and support may be needed to assist complainants to give evidence capable of being believed in court. NZ Police and prosecutors should assume that Deaf, disabled people, and people experiencing mental distress, can and will give credible evidence with appropriate accommodations and support, such as augmentative and alternative communication devices, alternative formats, and supported decision-making. NZ Police must disabuse themselves of the scepticism with which they have previously viewed complainants who have been in State or faith-based care.

Me whai whakaaro i te hāpori tūmatanui i roto i ngā whiu ā-ture, tērā te hapa i ūhia ki runga i te tangata i raro i te maru kaitiaki o ngā pūnaha taurima ā-Kawanatanga, ā-whakapono rānei
Include, as a public interest consideration for prosecution, that the offence was committed against a person while in the care of the State or a faith-based institution

199. In Stolen Lives, Marked Souls, the Inquiry noted that all children and young people at Marylands and the Hebron Trust were vulnerable, and disabled children were particularly vulnerable.[98] This finding holds true for all children, young people and adults in State and faith-based care. NZ Police and prosecutors must specifically consider the public interest in such prosecutions for abuse and neglect in care.

Me kaha ake te tohe taki uiuinga e hua ai ngā whakawhiu a te ture
Strengthen the requirements for consultation on prosecution decisions

200. The Inquiry heard from many survivors that prosecution decisions were often made without adequate (or any) consultation with them. In He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, the Inquiry found that some disabled survivors require communication assistance to share their experiences, and that a lack of accommodations and supports creates a barrier to making a complaint.[99] Deaf survivors were prevented from communicating because sign language interpreters were rarely available.[100]

201. The Solicitor-General’s guidelines should include requirements to ensure that communication assistance and any other necessary accommodations are available to complainants who require it to enable them to participate in consultation on prosecution decisions, not just when giving evidence in court.[101] Expert advice should be obtained where necessary. That a complainant is disabled or experiencing mental distress should not of itself be considered a practical reason not to consult.

202. A public interest consideration against prosecution arises where prosecution is likely to have a detrimental effect on the physical or mental health of a victim or witness. Before such a decision is made, prosecutors must ensure that the victim or witness has been adequately consulted and their view on the effects on them is considered. Similarly, victims of physical or sexual violence or neglect must be informed of any plea discussions so that they can make their views known to the prosecutor.

Whakatū kaupapa hei mātai i ngā mahi hāmene
Establish a process for reviewing charging decisions

203. As discussed above, for some survivors the investigation and prosecution of their abuser is an important part of redress. But once a complaint is made to NZ Police the survivor has no control over the process – it is up to NZ Police to investigate the allegations properly, and to make initial decisions whether to charge the offender.

204. In Beautiful Children: Inquiry into the Lake Alice Child and Adolescent Unit report, the Inquiry found that more than 40 years passed before NZ Police finally acted on the steady stream of complaints made to them about sexual offending and serious assaults at Lake Alice and filed charges.[102] Only then did they lay charges against one alleged perpetrator. The Inquiry found that the fact that only a single individual was charged was a direct result of the delay and the inadequacy of earlier investigations. This was a lost opportunity to obtain a key element of redress – accountability of perpetrators.[103]

205. In Stolen Lives, Marked Souls, the Inquiry found that NZ Police made poor prosecution decisions in their first investigation into sexual offending allegations against one Brother at Marylands, which meant some crimes were never prosecuted even though the Brother admitted the offending when interviewed.[104]

206. Charging decisions are made by NZ Police and Crown prosecutors. The current guidelines for prosecuting sexual violence include a process where complainants of sexual violation offences can seek a review of decisions made by NZ Police or Crown prosecutors not to prosecute or to end a prosecution.[105] However, the process enables NZ Police or the Crown Solicitor to determine how a review should be conducted, and it is not available to complainants of other types of sexual offending, or for violence and neglect offending. The only guidance given by the Solicitor-General is that reviews should be conducted by persons of sufficient seniority who were not involved in the original decision. Complainants must be advised of the review process to be adopted and the likely timeframe to complete it. The Inquiry heard from Crown Law that the number of reviews sought for all types of offending since the process was formalised in 2018 is extremely small, less than five reviews per year across the entire country.[106] That indicates that there is little knowledge of the ability to seek a review.

207. The Inquiry considers there should be a clearer and more structured process for reviewing decisions not to prosecute, designed to ensure consistency and accountability through better oversight of investigations and decision making. It should be accessible to complainants and should apply to all sexual offending and crimes against the person in Parts 7 and 8 of the Crimes Act 1961.

Tūtohi 22 | Recommendation 22

The Solicitor-General should amend the suite of prosecution guidelines to:

a) include a requirement that those making decisions about whether to prosecute, and which charges to file, act consistently with Aotearoa New Zealand’s international human rights obligations and other relevant international law obligations (including in particular the United Nations Convention on the Rights of Persons with Disabilities, the United Nations Convention on the Rights of the Child, and the United Nations Declaration on the Rights of Indigenous Peoples)
b) include, in relation to the evidential test for prosecution, a requirement that those making assessments on the credibility and quality of a complainant’s evidence recognise the potential for their own bias, obtain relevant expert advice where necessary, and provide appropriate accommodations where necessary
c) include, as a public interest consideration for prosecution, that the offence was committed against a person in the care of the State or a faith-based institution
d) strengthen obligations to engage appropriately (that is, more than consult) with complainants (including the use of communication assistance) on prosecution decisions, including when considering whether to prosecute because of the likely detrimental effect on a witness’s physical or mental health
e) establish a review process for complainants who allege offences falling under Parts 7 or 8 of the Crimes Act 1961 where a decision has been made not to prosecute by NZ Police or a Crown Solicitor, which:

i) is designed to ensure fairness and consistency in the approach to charging decisions nationwide
ii) requires an evaluative review of the evidence and the decision not to prosecute
iii) establishes national panels of suitably trained and experienced prosecutors to conduct reviews of decisions not to prosecute made by NZ Police and Crown Solicitors
iv) includes a requirement for the panel reviewing NZ Police decisions not to prosecute to seek legal advice from a Crown Solicitor where the decision is finely balanced and/or complex, or is an offence listed in the schedule to the Crown Prosecution Regulations 2013
v) has the power to refer a decision not to prosecute back to the decision maker for further consideration and/or investigation
vi) ensures complainants are consulted in person with necessary accommodations.

He tikanga ārahi hāmene me pehea te aro ki te hunga whakatakoto nawe, kaiwhakaatu, kaikawe whakapae, e hauātia ana, pehia e te mate hinengaro
Guidelines for prosecutors on how to approach cases involving complainants, witnesses and defendants who are disabled or experience mental distress

208. The Inquiry has found that the criminal justice system has not ensured access to justice for disabled people and people experiencing mental distress.[107] The Inquiry recommends the Solicitor-General should issue new guidelines on how to approach cases involving Deaf, disabled people and/or people that experience mental distress are afforded access to justice. Further education is required to ensure that they are afforded access to justice.

Tūtohi 23 | Recommendation 23

The Solicitor-General should issue specific guidelines to prosecutors on how to approach cases involving complainants, witnesses and defendants who are Deaf, disabled and/or experience mental distress to ensure access to justice, and in doing so should involve those with lived experience throughout the development process to ensure concerns and aspirations are consistently understood and considered.

Tūtohi 24 | Recommendation 24

The government should invest in training for prosecutors on these guidelines.

Tautokohia ngā tikanga-ā-ture e tohu ana ki ngā take whakamau hara
Support judicial initiatives that address the causes of offending

209. The Care to Custody: Incarceration Rates report commissioned by the Inquiry showed that one out of every three children and young people placed in residential care by the State went on to serve a prison sentence later in life. For tamariki and rangatahi Māori, this statistic increased to 42 per cent.[108] In comparison, for the same time period, no more than 8 per cent of the general population of similar demographics went to prison.

210. As the Inquiry has reported, the impacts of abuse and neglect in State and faith-based care mean it is much more likely that survivors will commit offences themselves and interact with the criminal justice system. The Inquiry supports the approaches taken in specialist and solution-focused courts that are designed to assist defendants (many of whom are survivors) to address the causes and break the cycle of their offending.

211. Specialist and solution-focused courts are not, however, available in all parts of Aotearoa New Zealand, so not all defendants can access them.

212. The District Court is implementing its Te Ao Mārama – Enhancing Justice for All programme, which “takes best practice approaches from specialist and solution-focused courts…and applies them in the mainstream District Court”.[109] These best practice approaches include:

“Adopting ‘solution-focused’ judging – i.e. asking ‘what has happened to this person to bring them to this point in their life’ and then addressing those causes.”[110]

213. The Ministry of Justice, which is supporting the District Court to implement Te Ao Mārama – Enhancing Justice for All by funding its delivery, acknowledged that additional investment would be needed to fully implement the programme across Aotearoa New Zealand.[111]

Tūtohi 25 | Recommendation 25

The government should support and invest in judicial-led initiatives, such as Te Ao Mārama – Enhancing Justice for All, that recognise and address the harm caused by abuse and/or neglect in care.

Ngā panoni ture taihara
Criminal justice legislative changes

214. Several laws relating to criminal justice proceedings need to be amended to prevent further or continuing harm and stigmatisation of survivors of abuse and neglect. The Inquiry envisages that the design of these law changes (before draft legislation is introduced into Parliament) will be jointly developed by government and Māori in accordance with te Tiriti o Waitangi, as well as co-designed with communities in line with implementation Recommendations 126—127.

215. The Inquiry notes that some of the language used in existing legislation is often outdated and does not reflect a strengths-based approach to understanding the experiences of survivors of abuse, particularly the terms ‘victim’ and ‘vulnerable’. However, in order to strengthen existing legislative protections the Inquiry has opted to use the language already contained in legislation.

Whakarerekē i ngā ture taihara
Amending criminal justice legislation

216. Currently there is a lack of clarity and protection in legislation for disabled people who experience abuse, ill-treatment and neglect in care. The Crimes Act 1961 does not include disability as a factor that makes someone a ‘vulnerable adult’ and this is a gap in protections for disabled people. Similarly, the Inquiry considers that amendments should be made to the Sentencing Act 2002 to ensure that vulnerabilities of young victims of abuse and neglect are specifically recognised as aggravating features where applicable.

217. This Inquiry has heard and recognises concerns from the disability community about describing disabled people as ‘vulnerable.’ This framing is deficit-based and implies that abuse occurs because of inherent traits within disabled people rather than because of abusers’ actions and systemic failures to safeguard rights. As discussed above, however, in its recommendations the Inquiry seeks to strengthen protections for disabled people in the current legislative framework so it has adopted those terms.

218. In the Beautiful Children: Inquiry into the Lake Alice Child and Adolescent Unit report, the Inquiry found that many survivors of abuse in psychiatric care ended up in the youth and criminal justice systems. Survivors committed crimes, usually theft, soon after their release from Lake Alice, to survive. The Inquiry also heard from many survivors of abuse in social welfare residences that they committed dishonesty offences to survive when running away from the place of abuse, or committed assaults on caregivers who were abusing them.

219. The Inquiry considers that convictions for such offences, where they can be established as being committed while in and/or subsequent to being in State or faith-based care and as a reasonable response to being abused in care, should not be taken into account as an aggravating factor by judges sentencing survivors in the Youth, District and High Courts for later offending. The Criminal Records (Clean Slate) Act 2004 should also apply to such convictions.

Tūtohi 26 | Recommendation 26

The government should amend the Crimes Act 1961 to specifically include disability within the definition of a vulnerable adult.

Tūtohi 27 | Recommendation 27

The government should amend the Sentencing Act 2002 to:

a. include, as an aggravating feature in section 9(1), the fact that a victim was particularly vulnerable as a result of being in State or faith-based care or deprived of liberty
b. expand the requirement for the court to consider the aggravating factors in section 9A(2) in cases of abuse and/or neglect to include children and young persons under the age of 18 years
c. include a requirement that when considering an offender’s previous convictions under section 9(1)(j) the court should ensure those with convictions for offences committed in response to abuse and/or neglect in care are not unduly penalised.

Tūtohi 28 | Recommendation 28

The government should amend section 284 of the Oranga Tamariki Act 1989 to ensure that offending by young people abused and/or neglected in care in response to that abuse and/or neglect is not given undue weight as an aggravating factor at sentencing for later unrelated offending.

Tūtohi 29 | Recommendation 29

The government should review the Criminal Records (Clean Slate) Act 2004 to ensure that offending committed by people abused and/or neglected in care in response to that abuse and/or neglect does not unfairly exclude them from eligibility under the Act.

Te whakarerekē i te Ture tika Hunga Pārure 2002 e āhei ai te tautoko i te hunga i pāruretia
Amending the Victims Rights Act 2002 to enable the provision of support to victims

220. In He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, the Inquiry reported that the lack of publicly available information about all aspects of redress processes leaves many survivors confused about whether they can make a claim and how to do it.[112] The Inquiry also reported that survivors, especially disabled survivors or those living in provincial or rural areas, struggled to find lawyers with the necessary knowledge and experience.[113]

221. Victims of abuse and neglect in care must be advised of the ability to seek redress in the civil courts and through the redress system, and of their right to apply for civil legal aid for proceedings. Amendment of section 11 of the Victims Rights Act 2002 will ensure that information is provided, and an appropriate list of lawyers with the necessary experience in abuse and neglect in care cases is maintained.

Tūtohi 30 | Recommendation 30

The government should amend section 11 of the Victims Rights Act 2002 to ensure that victims of abuse and neglect in State or faith-based care must be advised of the ability to seek redress in the civil courts and through the puretumu torowhānui system and scheme, and their right to apply for legal aid for civil proceedings.

Tūtohi 31 | Recommendation 31

The Ministry of Justice should establish a list of specialist lawyers available to provide legal advice to victims about seeking puretumu torowhānui (holistic redress).

Te whakarerekē i te Ture Taunaki Kōrero e āhei ai te tautoko i ngā mahi whakawhiti kōrero
Amending the Evidence Act to enable communication assistance to be provided

222. Section 80(3) of the Evidence Act 2006 currently provides that communication assistance is available to enable a witness in criminal proceedings to give evidence. Communication assistance should also be available where necessary to enable witnesses to understand the court proceeding (as is provided for defendants under section 80(1)).

223. Communication assistance and appropriate accommodations, such as augmentative and alternative communication devices, alternative formats, and supported decision-making, can remove barriers to giving evidence and understanding court proceedings, particularly for Deaf, disabled people, and people experiencing mental distress. Communication assistance should be available as a matter of right, to enable Deaf, disabled people, and people experiencing mental distress, to participate effectively in criminal proceedings.

Tūtohi 32 | Recommendation 32

The government should amend section 80(3) of the Evidence Act 2006 to ensure witnesses in criminal proceedings have an entitlement to apply for communication assistance to enable them to both understand the proceedings and give evidence.

Te ako me te whakamatautau i te hunga e mahi ana i roto i te pūnaha-ā-ture
Education and training for people involved in the justice system

224. The failings that the Inquiry reported in He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui[114] and Beautiful Children: Inquiry into the Lake Alice Child and Adolescent Unit[115] indicate clearly that education of those working in the criminal justice system is required to disabuse persistent negative attitudes towards children and young people in care when they make complaints. Further, the Care to Custody: Incarceration Rates Research Report, while considering impacts historically, underscores the need for education as to the impact of placing a young person in a State care setting.[116]

Tūtohi 33 | Recommendation 33

The Ministry of Justice, Te Kura Kaiwhakawā Institute of Judicial Studies, NZ Police, the Crown Law Office, the New Zealand Law Society and other relevant legal professional bodies should ensure that investigators, prosecutors, lawyers, and judges receive education and training from relevant subject matter experts on:

a. the Inquiry’s findings, including on the nature and extent of abuse and neglect in care, the pathway from care to custody, and the particular impacts on survivors of abuse and neglect experienced in care
b. trauma-informed investigative and prosecution processes
c. all forms of discrimination
d. engaging with neurodivergent people
e. human rights concepts, including the obligations under the Convention on the Rights of Persons with Disabilities, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Elimination of All Forms of Racial Discrimination, and the United Nations Declaration on the Rights of Indigenous Peoples.

Panonihia ngā kaupapa arotake, ka whakatū ai he tira wherawhera motuhake
Amend investigation guidelines and establish a specialist investigation unit

Kia pau te kaha o te Roopu Pirihimana o Aotearoa ki te whakamau i ngā here tika tangata o te ao
NZ Police to fully implement Aotearoa New Zealand’s international human rights obligations

225. As discussed above, all international obligations adopted by Aotearoa New Zealand should be considered by NZ Police during criminal investigations. Instructions and guidelines should be reviewed and amended to ensure those obligations are embedded in training material and reflected in all aspects of investigations and prosecutions. This is to ensure that NZ Police are fully aware of and give effect to the human rights of survivors of abuse and neglect who are participants in criminal cases.

Tūtohi 34 | Recommendation 34

NZ Police should review the Police Manual and other relevant material to ensure instructions and guidelines reflect and refer to Aotearoa New Zealand’s international human rights obligations and other relevant international law obligations (including the Convention on the Rights of Persons with Disabilities, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Elimination of All Forms of Racial Discrimination, and the United Nations Declaration on the Rights of Indigenous Peoples).

He tira motuhake hei wherawhera hei whiu i ngā mahi tūkino i roto i ngā pūnaha taurima
Specialist unit to investigate and prosecute abuse and neglect in care

226. The Inquiry considers that the investigation and prosecution of allegations of abuse and neglect of people in State and faith-based care, historical or current, should be recognised as complex and as requiring specialised knowledge and expertise. Commissioned and non-commissioned staff working for the unit will need to be appropriately educated and trained on a range of issues relevant to survivors of abuse and neglect in care, such as how to address prejudice and all forms of discrimination, neurodiversity, the effects of trauma, and unconscious bias against survivors who may have gone on to commit offences themselves.

Tūtohi 35 | Recommendation 35

NZ Police should establish a specialist unit dedicated to investigating and prosecuting those responsible for historical or current abuse and neglect in State and faith-based care.

Ngā panoni ture tikanga-ā-iwi
Civil justice legislative changes

227. Several laws relating to civil justice proceedings need to be amended to remove barriers to access to justice for survivors relating to delays and financial burdens. The Inquiry envisages that the design of these law changes (before draft legislation is introduced into Parliament) will be jointly developed by government and Māori in accordance with te Tiriti o Waitangi, as well as co-designed with communities in line with implementation Recommendations 126–127.

Me noho matua ngā take ture tikanga ā-iwi
Civil proceedings to be prioritised

228. In He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, the Inquiry found that:

a. the Crown vigorously defended those claims that could not be settled with a claimant, which included the Crown causing long, avoidable delays,[117] and
b. legal aid recipients face having to pay off large legal aid debt, unless the amount is written off as part of a settlement or covered by a court order.[118]

229. An inherent power imbalance exists for any survivor of abuse in care taking civil proceedings against an institution. Survivors must be given priority and supported to participate fully in proceedings.

Tūtohi 36 | Recommendation 36

The courts should prioritise civil proceedings regarding care or abuse and neglect in State or faith-based care to minimise litigation delays.

Tūtohi 37 | Recommendation 37

The government should review the Legal Services Act 2011 to remove barriers to civil proceedings regarding abuse and neglect in care, including means-testing criteria, charges over property, and repayments.

Te whakarerekē i te ture Taunaki Kōrero e āhei ai te tautoko i ngā take ture tikanga ā-iwi
Amending the Evidence Act to provide for communication supports in civil proceedings

230. In He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, the Inquiry detailed the traumatic impacts that participation in civil proceedings can have on survivors, including when preparing their case and giving evidence in court.[119]

231. Communication assistance and appropriate accommodations, such as augmentative and alternative communication devices, alternative formats, and supported decision-making, can remove barriers to giving evidence and understanding court proceedings, particularly for Deaf, disabled people, and people experiencing mental distress. Communication assistance should be available as a matter of right, to enable Deaf, disabled people and people experiencing mental distress to participate effectively in civil proceedings.

Tūtohi 38 | Recommendation 38

The government should amend the following provisions of the Evidence Act 2006:

a. section 80(3), to ensure that witnesses in civil proceedings have an entitlement to apply for communication assistance to both enable them to understand the proceedings and give evidence
b. section 103(4)(b)(ii), to require a court when making directions on alternative ways of giving evidence in civil proceedings relating to abuse and neglect in care to consider the need to promote the recovery of parties and witnesses from the abuse and neglect
c. subpart 5, to include provision for directions for alternative ways of giving evidence for parties and witnesses in civil proceedings where appropriate.

Footnotes

[32] Royal Commission of Inquiry into Abuse in Care, He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, Volume 1 (2021, page 264).