Prime Minister Christopher Luxon and the Government formally apologised to the survivors of abuse in care yesterday after the Royal Commission released its report into abuse in state care in July this year. The Commission said the “unimaginable” and widespread abuse in care during the review period — 1950 to 2019 — amounted to a “national disgrace”. It said an estimated 655,000 children, young people and adults were in care during that period with an estimated 200,000 being abused and even more neglected.
The Royal Commission recommended the establishment of a “holistic” redress system, the provision of financial compensation for victims and other redress such as changing the names of places linked to abuse and perpetrators. While the final report does not suggest how financial compensation should be structured, it recommends the Government look at the compensation made to survivors in other comparable countries like Australia. The report mentions Australian court cases where survivors were awarded multimillion-dollar payouts, with one survivor receiving compensation of AU$5.9 million.
Now that the long-awaited apology has been delivered, where to for the victims of abuse?
New Zealand does not need to look far for a model to address the Royal Commission’s recommendations for a “holistic” redress system and the provision of financial compensation for victims. Māori have long complained about breaches by the Crown of the Treaty of Waitangi, leading to generations of loss. The Waitangi Tribunal was established in 1975 to hear contemporary Māori claims of breaches of the Treaty of Waitangi. Its jurisdiction was extended in 1985 to consider claims about any alleged breach of the Treaty since 1840. Those historical breaches raised more complex issues for settlement.
Those earlier settlements lead to the National Party developing the controversial “fiscal envelope” policy in 1994 with an arbitrary limit of $1 billion being put on the total of all settlements by the Government. Iwi were already resigned to the reality that any economic redress would only represent a fraction of the actual historic loss. “We wanted a sufficient settlement to enable our people to move into full participation in New Zealand society and culture” said Tā Tipene O’Regan, the lead negotiator of the Ngāi Tahu settlement. “On the other hand, we had no wish to bankrupt the society that we wished to become a part of.” The controversial “fiscal envelope” quietly disappeared and Treaty settlements continue.
Another model to look to might be our employment institutions – the Employment Relations Authority and the Employment Court. They are tasked to make determinations of fact, and if appropriate, make decisions on the damage done in employment relationships, particular in relation to claims for unjustified dismissal. Those institutions have a limited range of remedies. They have the power to stop damage being done, or preventing further damage being done (injunctions). Where damage has been done they have the power to award a limited number of remedies (usually being lost wages, compensation, and a contribution to legal costs). Those remedies are usually limited to up to 3 months’ wages and compensation on a scale that the courts have developed in recent years that seldom exceeds $50,000.
Without derogating from the impact of breaches of The Treaty on generations of Maori and the suffering and abuse of many victims in the Crown’s care, the impact on an unjustified action by an employer on a worker can have devastating impact on that worker, including his family. Workers health may be damaged at work; workers health may be damaged by the termination of their work; workers self-esteem and confidence can be damaged. Those impacts may go on for years. It may go further, families can struggle to survive on one income; families may have to relocate from their established support networks; children may have to be sent to school without lunch or breakfast.
When a worker is injured or dies at work, the Crown has agencies such as ACC that may be able to assist with covering lost income or providing some compensation for the loss. WorkSafe may prosecute the employer and reparation awards may be made to the worker or his family.
Maybe loss of freedom should be a model to look at? Alan Hall spent nearly two decades in prison after being convicted for murder. When he was finally acquitted by the Supreme Court in 2022 he was compensated for his loss of freedom by the Crown with a payment of nearly $5 million.
So how will the Crown address the issue of compensation that the Royal Commission has recommended, and will it ever be enough? Read more...