Hurdles for state abuse inquiry to clear

Victims need acknowledgement and a full and frank apology from the highest level of government, says Dr Elizabeth Stanley, a Reader in Victoria University of Wellington's Institute of Criminology.

The new Royal Commission of Inquiry into Historical Abuse in State Care could be life-changing, but will need to clear several hurdles if it is going to do more than pay lip service, says Victoria University of Wellington criminologist Dr Elizabeth Stanley.

Stanley has researched truth commissions in South Africa, Chile and Timor-Leste and is author of The Road to Hell: State Violence against Children in Postwar New Zealand, based on her interviews with more than 100 victims.

Then-opposition children’s spokesperson Jacinda Ardern committed to the inquiry at the book’s launch in 2016.

Lasting three years, with former Governor-General Sir Anand Satyanand as chair, it will be the biggest inquiry in New Zealand’s history, offering the opportunity to acknowledge the thousands of people who have come forward as victims, says Stanley.

Speaking as part of Victoria University of Wellington’s Provost Lecture Series, she detailed the extent and many facets of the abuse, along with its legacies, before emphasising how important acknowledgement is.

“How can we ever begin to acknowledge all of this – the abuse, the creation of criminals, the deaths, the long-term trauma, absolute disadvantage? There is a difference between knowledge and acknowledgement. In New Zealand, there is a lot of knowledge. The victims know what happened to them. They’ve witnessed what happened to other people. Some workers know, even if they won’t publically admit it. New Zealanders increasingly know. But acknowledgement is different. Acknowledgement is what happens when knowledge is officially sanctioned. Acknowledgement is a social act.

“As Albie Sachs, who’s an activist and former judge in South Africa, reflected on his country, there was in reality an enormous amount of knowledge about oppression in South Africa, but hardly any acknowledgement of what the cost was in human terms. Acknowledgement involves an acceptance, not only of the existence of a phenomenon but of its emotional and social significance. It presupposes a sense of responsibility for the occurrence; an understanding of the meaning that it has for the persons involved, and the society as a whole.”

New Zealand is about to discover how acknowledgement “is a social, emotional and political act”, said Stanley.

“Our new understandings of violence, pain and trauma through this impending commission will create obligations to propel action. Not just toward individual victims but toward their families and toward our communities. I think this acknowledgement of state violence can go beyond lip service, but it will entail a few things. That might get a bit uncomfortable.

“It will mean a prioritisation of victims’ needs over those of government and powerful others; it will mean developing more scrutiny and accountability of state actions; it will mean ensuring the participation of, and redress for, all victims, including those who sometimes we find unpalatable; and it will mean establishing state commitments to implement the necessary changes across a whole raft of government law, policy and practice.

“None of this is going to be easy. Some of what we are going to hear may change the way we think about our country. Some of the stories we will hear, we will wish we had never heard them. But if done effectively this royal commission can be life-changing.”

Victims need a full and frank apology from the highest level of government, said Stanley.

“The people that I interviewed, it was right up there at the top of what they wanted: to be recognised and to receive an apology were the two main things they talked about. I think a problem we have had, which is why we have had 10 to 15 years of terrible treatment, is that the Government looked at the victims and just saw them as dollar signs. Saw them as all seeking compensation. And that really isn’t correct, in that what people want is recognition and an apology. And they want prevention. They want to make sure children don’t have to go through what they went through.”

Following public consultation on the royal commission’s draft terms of reference, including a two-day hui at Victoria University of Wellington sponsored by the Law Foundation and co-convened by Stanley, Satyanand’s recommendations for final terms of reference are now with Minister for Internal Affairs Tracey Martin.

Stanley welcomed that, unlike with commissions in Australia and the United Kingdom, the draft terms included not only sexual abuse but also physical and psychological abuse and neglect.

“Our commission can also look at the impacts of abuse, including inter-generational impacts and the way impacts differ according to people’s circumstances,” she said.

“But within the draft terms there are also certain exclusions that will inhibit acknowledgement. The focus on state care: there are many who have begun to question the exclusion of those abused across other sites, such as within religious homes, religious schools, other places. I can’t imagine that this issue is going to go away.

“Another really big issue is timeframe – from 1950 to 1999. You look at that and think, ‘Half a century, surely that is enough.’ And the commission will have discretion to look at cases before 1950. But even so, this draft timeframe may exclude older people. And it will certainly exclude the youngsters. Victims vehemently argue that this cut-off date is a state protective strategy, to avoid questions of those still in posts.”

Stanley wondered “how the commission could ever produce meaningful recommendations about contemporary practice if they just focus on historic inquiries”.

Another shortcoming was the draft terms provided no remit to record how official decisions, investigations and proceedings have dealt with abuse complainants – how they effectively “revictimised” some complainants by inflicting fresh trauma on them.

Clearly, the commission cannot cover everything, given limited time and resources, said Stanley.

“But the issues of timeframe and allocation of responsibility seem to me to be particular points when the state has continued to prioritise its own reputation or administrative ease rather than the victims’ needs for acknowledgement.”

Given how Māori have been disproportionately affected by state abuse, “the commission has to ensure that kaupapa Māori principles are centralised through appointments, the design of commission practices, how hearings are run, everything”, said Stanley.

But she said: “Rather strangely, the draft terms make no mention of the Treaty.”

The commission needs to ensure services to support victims, including in pursuing prosecutions or restorative justice meetings, said Stanley.

“And there’s a real need to think through redress. Our current system for monetary payments is fundamentally flawed. We need a new best practice scheme – and preferably quite fast.”

Ultimately, said Stanley, the success of the commission and acknowledgement of state abuse will be judged by what changes.

“Victims give their stories of trauma, horror, absolute loss, and what will we do with them? What are we really willing to change as a result of this troubling new knowledge? International research repeatedly tells us that victims see commissions as furthering harm when truth finding is not followed by action, by apologies, by redress, by institutional change.”

That is to say: after the inquiry, we all know what happened but do nothing about it.

That, said Stanley, would be even worse than not holding the Inquiry and not listening to the stories in the first place.

“What became really clear from my research is that victims are really tired of having to tell people. At the moment, they have to tell people again and again and again and again. It’s exhausting and they don’t get anything from it. They put it all out there and nothing changes.

“We’re asking people to come forward again and to give their testimony. That’s really hard and it can’t be taken lightly. Sometimes people think it’s easy for people to speak. It really isn’t. People talk about losing a slice of themselves when they do it.

“One thing people have also said is they are willing to tell if they think something is going to shift. This is why the whole thing of what happens afterward is so important. If things happen afterward, victims continually talk about that sense of healing, that sense of closure. If nothing happens afterward, that’s where things are really problematic.”

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