Despite the title, this is not a Bill designed to provide comprehensive redress. Rather it will permit the government to withhold financial compensation from people who were abused by the state as children and who have committed offences as adults.
The final report of the Abuse in Care inquiry quantified the immense cost of historical state torture. It found the average lifetime cost to a survivor of abuse and neglect in state care was about $857,000. The total economic cost of this abuse and neglect between 1950 and 2019 is estimated to be about $200billion.
Over 3800 people registered an interest with the inquiry, and nearly 2800 shared their experiences, including 2329 survivors. Every one of these survivors deserves justice and compensation for the harm the state inflicted on them.
For the government to now state the consequences of its abuse against children are the problem of the victim is a profound rejection of its culpability.
The government, as a recidivist abuser of children, is now using its unique legislative power to deny its victims justice. The fact the state is large and has offended against hundreds of children over decades does not somehow dilute the gravity of its crimes.
In fact, because the state assumed the role of parent to these children, its culpability is heightened, not diminished. The 2329 survivors who came forward represent only a portion of those affected. Thousands more could not or did not come forward because they were too traumatised or had died. The government’s responsibility for the destruction of these lives must not be minimised.
The government justifies the Bill by asserting that providing compensation to victims who are imprisoned for serious offences might bring the redress scheme into disrepute. But, disrepute with whom?
It is certainly not with the survivors. This provision directly opposes a specific recommendation from the royal commission of inquiry there should be no exclusion for serious offenders. The impacts of state-inflicted trauma would be worsened by a two-tier redress system.
The Ministry of Justice, in its analysis of the Bill, acknowledged it risks criticism from international bodies such as the United Nations Human Rights Committee and the United Nations committee against torture. They identify the ‘‘clearly documented link’’ between abuse in care and later offending which the government refuses to acknowledge in this Bill.
Furthermore, the Bill contains a requirement, backed by the threat of a $5000 fine, for offenders to submit their entire criminal records for scrutiny. Those provisions have not been passed to the privacy commissioner for review, despite the potential for significant privacy breaches.
The Ministry of Justice also expects this Bill will disproportionately impact Māori. Systemic overrepresentation of Māori in the prison population means Māori will be more likely to be denied financial compensation for the abuse they suffered as children.
As appalling as this Bill is, this is consistent with a history of the Crown acting with systematic dishonour in response to abuse in care claims.
It has been responsible for long and avoidable delays, a failure to keep claimants informed and a neglect of its own policy of settling cases promptly. It has actively resisted settlement payments, even after abuse was proven, and refused to engage in meaningful discussions, using its superior resources to wear down survivors.
The Crown exploits legal technicalities and engages in unethical tactics. It has withheld crucial evidence adverse to its own case for extended periods and opposed name suppression for victims on strategic grounds, and challenged necessary adjournments for claimants who lacked legal funding. These actions dishonour survivors.
Even beyond the denial of financial compensation, the Bill states an official apology made by a state agency will not be admissible as evidence in civil proceedings. While justified as a measure to allow for fulsome apologies, this further removes from victims their existing rights to seek full redress and justice through the courts.
There are undoubtedly people who were victimised by the state as children who later committed serious crimes as adults. Those people get no justice.
Instead it subjects them to a form of double jeopardy. They are punished once by the criminal justice system for their adult offences, and now a second time by this Bill, which denies them justice for the trauma they endured in childhood. It imposes an additional sentence for their trauma-driven responses to state abuse and neglect.
The government is seeking to absolve itself of its responsibility for the harm it first caused as an abuser of children. It imposes a judgemental propriety on the trauma response, requiring survivors to meet a curated standard of behaviour agreeable to its respectability politics. Any deviation from it requires punishment.
But these children, wherever they are now and whatever their lives, deserve the greatest possible justice on behalf of us all.
• Metiria Turei Stanton is a law lecturer at the University of Otago and a former Green Party MP and co-leader.
