5 November 2020
E te rau rangatira, e te mano roimata
E ārahi ana i tēnei Kaupapa nui whakaharahara
Tēnā koutou katoa.
Introduction
1 The following submissions are intended to assist the Royal Commission by addressing the issues for the Crown in the redress hearing as set out in the Commission’s scoping paper(external link)(external link) [please note, the references to paragraph numbers below refer to this scoping paper]. Additionally, access to Legal Aid is covered.
2 The scoping paper lists the Commission’s issues in two categories, the first referring to the experiences of survivors and the second relating to the Crown’s handling of historic abuse redress claims. Similar issues are covered in the two sections.
3 The following submissions largely address the Crown’s response to the issue set out at paragraph 2 of the scoping paper:
How did the Crown receive, process, manage, conduct and resolve civil claims involving abuse in State care alleged to have occurred during the relevant timeframe?
Para 2.1 The policies, procedures, processes and strategies of the Crown in relation to redress for civil claims made or filed during the relevant timeframe and subsequently, including the reason/s for any changes made
4 The claims were initially notified to the Crown by way of proceedings filed in the High Court. The proceedings were then progressed according to the Crown’s then current litigation strategy, with Crown Law responsible for the conduct of the litigation. The Solicitor-General’s evidence, at paragraph 4.2 of her primary brief, was that: “The overall theme is that, in the initial stages of the claims in the early 2000s and working through to the end of the White High Court litigation in 2007, the Crown took an orthodox approach to the litigation, largely undifferentiated from any other litigation defended by the Crown”.
5 An exception to this approach was made for Lake Alice Child and Adolescent Unit (Lake Alice) claimants – this was a class action filed in the High Court in April 1999 on behalf of 88 claimants (Grant Cameron & Associates). In the early 2000s Cabinet decided to compensate and apologise. There were two rounds of settlement that followed, and the process has been left open for further claimants.[1](external link) The government approved up to $6.5 million for the first round and $5.7 million for the second. Under the settlement process Sir Rodney Gallen was instructed by the Crown and divided up the money between claimants. The Crown funded legal representation of all claimants.
6 Lake Alice has been the only class action brought against the Crown in the historic abuse context.
Systemic abuse
7 The question of whether abuse in the various state care settings has been “systemic” has taken on significance. The question has been relevant to considering the scale and nature of abuse in state care, and the Crown’s failure to prevent it, but it has also been used in a more refined way when considering the Crown’s approach to redress. Abuse being characterised as “systemic” (or not) has generally been the Crown’s justification for the different approaches between the global settlement for survivors of abuse at Lake Alice and other abuse in care claims, which have tended to be assessed on a case-by-case basis.
8 “Systemic” has been used to mean abuse that was so uniformly experienced in the institution and clear from its own record (as in Lake Alice) that the Crown was prepared not to investigate individual claims, but rather to proceed on the basis that that if a person was at Lake Alice during the relevant period, that was an adequate basis for redress in the two Lake Alice settlements.
9 Unlike the abuse described by Lake Alice survivors, other survivors’ accounts have been characterised as relating to different institutions, different perpetrators, different types of abuse, and during different periods. On this basis, abuse outside of Lake Alice has generally been described as not being ‘systemic or endemic’.[2](external link)
10 The Commission will of course form its own view of whether abuse has been systemic, and the ramifications of any such finding for redress. As noted in the Solicitor-General’s evidence, it is not clear that the Crown has considered what systemic abuse would look like, outside of the Lake Alice environment (in which the perpetrator, setting, time period, and time of abuse were consistent). Differences in exactly what was meant by “systemic” at various points in time may have somewhat clouded the issues. The proper question may be whether the absence of safeguards and systems to prevent abuse, and act promptly and properly on it when discovered, is a systemic failure.
Para 2.2 The criteria under which survivors were eligible for and able to receive monetary redress for civil claims made or filed during the relevant timeframe, how such monetary amounts were calculated, and the means by which such information was made available to survivors and/or their legal representatives
Para 2.6 The means of resolution or settlement and outcomes (monetary and non-monetary) of all civil claims within the relevant timeframe
11 Initially, survivors sought redress through the courts. The availability of such redress was dependent on first establishing liability against the Crown. The considerable barriers to establishing liability in this setting are dealt with in other parts of these submissions relating to litigation.
12 As the Commission has heard, over time, agencies in receipt of historic claims have developed their own resolution processes, to provide claimants with an alternative to court proceedings. The agencies have chosen to assess the claims under these processes, rather than through a litigation-focused lens that would typically focus on the likely outcome if a matter proceeds to court.
13 The redress processes have changed over time but have some common features, including a low standard of evidence, and the use of “categories” of abuse, with quantum being assessed based on (broadly) the seriousness of the allegations.
14 Criticism that the quantum of redress in ADR processes is insufficient has been a feature of the evidence of Cooper Legal and survivors (and perhaps understandably so, given the experiences of claimants during their time in care). The following points are relevant in this context:
15 A consistent approach across the agencies, in view of these issues, has been to treat payments as payments to recognise harm that has been suffered rather than as compensation or as an entitlement.
16 The Ministry of Social Development (MSD), Ministry of Health (MOH), and Ministry of Education (MOE) all make partial contributions to Legal Aid debt which, in conjunction with Legal Aid writing off the remainder of the debt, enables survivors to retain all redress payments made (rather than having to repay Legal Aid out of these sums).
17 Some brief further comments in relation to each agency’s resolution system follow.
Ministry of Health
18 Overall, criticism of MOH’s current redress process has been addressed to quantum. The timing of MOH’s process has not been an issue, with the time taken being 4-6 weeks from receiving records.
Eligibility for engagement in the redress process
19 Eligibility for engaging in MOH’s redress process is based on those claims for which MOH could be a proper defendant. Principally this has been in the care of psychiatric institutions prior to 30 June 1993. Where the claim relates to abuse in the Child and Adolescent Unit at Lake Alice the claimant will be eligible for assessment under MOH’s Lake Alice-specific process, which is similar to the usual process but with a higher level of quantum.
20 MOH has also settled contemporary litigation filed against it, such as that of Mr Beale, relating to events after 30 June 1993 where Mr Beale was in the voluntary residential care of a private facility.
21 In order to receive payment in relation to abuse, the survivor must be able to show that they were in the relevant institution at the relevant time. Further evidence supporting the allegations is one factor that goes to quantum but is not necessary in order for allegations to be accepted for the purpose of making a payment. The evidence required to support an allegation is described as “whether it is reasonable to believe that the abuse may have taken place, for the purpose of making an offer”.[4](external link)
Calculation of monetary amounts
22 Claims relating to the Child and Adolescent Unit in Lake Alice settled in the early 2000s were paid a higher level of quantum than other MOH settlements (with claims being paid at an average of $70,000).[5](external link) Ongoing claims relating to the Child and Adolescent Unit continue to be paid at the same level.
23 Claims settled under the CHFA global settlement process were grouped into five categories, with a maximum payment of $18,000.[6](external link)
24 Current claims under MOH’s historic claims process are generally paid at half of the quantum of the CHFA settlements, with a maximum payment of up to $9,000. However, where current claims show that they are able to overcome the Limitation Act defence they will be settled up to $18,000 (ie, on the same basis as the CHFA settlements).[7](external link)
Availability of information about redress
25 Survivors have been able to find out about MOH’s redress by referral from the Confidential Forum, CLAS, and more recently the Royal Commission, during their respective periods of existence. Information is currently available on the Abuse in Care website. MOH acknowledged in evidence that information about the redress process should also be put on MOH’s own website. Those law firms involved in representing claimants to seek this type of redress are also aware of the Ministry’s process. The Lake Alice settlement process which occurred in the early 2000s was well publicised at the time.[8](external link)
Means of resolution and non-monetary outcomes
26 MOH’s redress payments are accompanied by an apology letter, usually in a template form although that may be adapted on request, as in the case of Mr Beale.
Ministry of Social Development
27 As MSD receives by far the largest number of claims, it has undergone the most evolution in terms of changing process. MSD acknowledged that the delays in its process are unacceptable and must change, and Ms Hrstich-Meyer described the initiatives on foot to address this.
Eligibility for engagement in redress processes
28 Survivors have been eligible to engage in the Ministry’s ADR processes for claims of abuse while in MSD’s care, though prior to the Crown Litigation Strategy being updated ADR would not be available except for claims assessed as being able to overcome the legal barriers often faced by historical abuse claims. Mr Wiffin’s case is an example of a claim spanning these two eras of the Crown Litigation Strategy and was not properly assessed on the basis of setting aside legal defences until the claim had already been discontinued, even after adoption of the revised 2008 Crown Litigation Strategy with its focus on assessing claims that had factual merit. MSD acknowledged the inadequacies in the way this claim was handled at the time Mr Wiffin’s claim was reviewed in 2010. At this hearing, MSD witnesses and the Solicitor-General apologised to Mr Wiffin, including for delays in assessing his claim and its failure to take into account and disclose to Mr Wiffin relevant information it held about his allegations, including specifically information relating to Mr Moncrieff-Wright’s conviction history.
Approach to calculating monetary amounts
29 The approach to calculating monetary amounts has varied to some extent across MSD’s processes, from the initial ADR process, the Two Path Approach (six categories ranging from $5,000 to $50,000), and the process now used following the November 2018 changes to the ADR process (seven categories, ranging from around $3,000 to above $55,000). Higher quantum of payment has been available for more serious and/or prolonged abuse. MSD has endeavoured to achieve consistency between payments across its different systems.
Availability of information about redress
30 Information about MSD’s process is available online, including a brochure and Historic Claims Business Process and Guidance intended to provide greater transparency around the process which was developed as part of the post-2018 changes. Further communication material is planned, to be completed in conjunction with claimants, in order to provide more information about the claims system, the choices available to claimants, and what to expect during the claims process.
Means of resolution and non-monetary outcomes
31 Resolution is typically by settlement payment, although prior to November 2018 some payments were made on an ex gratia basis. Survivors receive an apology letter as well. The post-2018 changes to MSD process envisage considering feedback from claimants about what they would like to receive as part of their apology.
32 Another potentially very significant change to the redress available, still in a pilot phase, is providing wraparound services by way of a community provider using a navigation delivery model. The focus of that support will be tailored to each claimant based on their self-identified goals (e.g. employment, accommodation, education, therapeutic support, whanau reconnection support).
33 MSD has historically paid for counselling or other services for a number of survivors, either as part of their redress or as assistance to navigate the claims process. MSD’s approach is around supporting claimants to access counselling, which may include linking them in with appropriate support (i.e. ACC) or funding counselling where necessary. Separately, “wellness payments” were developed as a means by which those claimants who were not eligible for a settlement payment by MSD might still receive some funding for services. Wellness payments could also be used for counselling, or for other similar services such as anger management or tattoo removal. Other ad hoc non-monetary outcomes have also been referred to, such as the survivor who was provided at his request with walking boots.
Ministry of Education
34 Ms Hurst accepted there are delays in MOE’s process that are frustrating for claimants, and said MOE are endeavouring to take steps to address this.[9](external link)
Eligibility for engagement in redress process
35 Generally speaking, a claim will be eligible for assessment under MOE’s redress process if the Ministry is the correct defendant.[10](external link) That is, if the claims are about events at any closed school, or an open primary school before 1989 (this includes residential special schools). MOE may not be the correct respondent, and therefore the claim will not be eligible for assessment, if the claims are about an open secondary school at any time period, an open school after 1989 or a private school. In that case, the claim will be referred to the correct respondent.
Availability of information about redress process
36 Information about MOE’s redress process is available on its website. Claimants can make contact by email or telephone.[11](external link)
Approach to quantum
37 MOE’s approach to quantum was based on MSD’s quantum payments, when MOE established its process. A comparison on MOE’s payments showed its goal of achieving general consistency with MSD has been reached, as discussed in Ms Hurst’s evidence.[12](external link)
Means of resolution and non-monetary outcomes
38 Resolution of claims is usually by way of settlement and is accompanied by an apology letter. Apologies have at times been made in person.
Oranga Tamariki
39 Oranga Tamariki is at an earlier stage in the development of a full assessment process than other agencies, though has implemented a process to manage the set of claims that pre-date Oranga Tamariki. Claims are eligible for assessment by Oranga Tamariki where they relate to abuse in care after 1 April 2017.
Availability of information about redress process
40 Information about how to make a claim is available on the Oranga Tamariki website or by talking to an advisor on the free-phone number. Information about making a complaint (which if appropriate will be triaged into the claims process) is available in brochures and on the Ministry’s website (including a child-friendly section of the website). Oranga Tamariki has also worked with MOE to ensure those in an education setting are aware of Oranga Tamariki’s process, following research which showed children were more likely to discuss abuse with a trusted adult in an education setting than with Oranga Tamariki directly.
Apologies
41 Apologies, as part of the redress process, have been tailored and have included in-person apologies from senior Ministry employees.
Para 2.3 The extent to which the Crown’s policies, procedures, processes or strategies had regard to Te Tiriti o Waitangi and tikanga Māori
Agencies’ processes
42 All agencies have recognised that the work of the Royal Commission will inform and assist their work in this important respect; specifically giving better express recognition to Treaty principles and the incorporation of tikanga Māori into their processes. The work of the Commission in relation to the experiences of Māori in the state care system will have particular significance in this regard.
43 MSD’s evidence was that substantial consultation with Māori occurred in 2017 which fed into the Ministry’s new process which was implemented in November 2018[13](external link) Feedback such as resolution requires more than just money has helped shaped the Ministry’s commitment to the development of wraparound services and considering the possibility of including initiatives such as whānau reconnection support as part of the package offered to claimants. This consultation has also led to some practical changes in the Ministry’s process with a focus on increased diversity and cultural competence of its staff, along with introducing more choice for direct claimants such as offering whanau group interviews where appropriate.
44 MOE’s evidence was that its own process was largely based on MSD’s, and Ms Hurst acknowledged that MOE had not worked in partnership with Māori to date. That work is scheduled to be done in the first half of 2021 (the need has been clearly flagged in the draft of the external consultants’ review of MOE’s process commissioned this year): she was clear that the advice received was that a consultation process needed to be done properly.
45 Mr Knipe acknowledged that MOH’s processes have not involved any express engagement with Te Tiriti principles although he referred to the flexibility of the HARS process to meet individual cultural needs and welcomed input from the Royal Commission on this issue.
Māori claimants’ feedback in MSD process
46 The 2017 MSD consultation with Māori made it clear that represented Māori claimants were generally less satisfied with the existing process than those who took their claims to the Ministry themselves (referred to as “direct claimants” in the hearing).
47 In this regard, it needs to be noted that all of the Phase 1 survivor witnesses were individuals who are represented by lawyers in respect of their claims for redress (all of them but one by Cooper Legal) and all had filed claims in Court. MSD’s evidence was that as at 30 June 2020, 59 per cent of claims were registered by claimants without a lawyer.[14](external link) At least in the context of the public redress hearing:
48 The Crown invites the Commission to obtain the perspectives of some of the people who have claimed redress from State agencies without representation by a lawyer.
Para 2.4 The Crown’s standing orders to Crown Law in relation to the conduct of civil litigation, the existence of civil litigation guidelines or values, and their application in the conduct of civil claims by Crown Law
Crown Litigation Strategy
49 The Solicitor-General’s evidence has dealt in detail with the Crown Litigation Strategy in relation to claims of historical abuse and its evolution since the early claims were filed. As Mr MacPherson also explained, the Strategy applied to all litigation conducted for departments by Crown Law.
50 Initially the Strategy proceeded on the basis of a “three pronged approach”, which included requiring all claims to be filed in court, noting the advantages of settling meritorious claims and testing legal frameworks. Settlement with a compensation element would not be offered for claims that were ACC barred.
51 This approach was reflected in the White litigation: settlement offers made by the Crown followed an assessment of litigation risk. Offers were not made on the basis that the White brothers’ claims were factually meritorious.
52 Significant changes were made to the Strategy in 2008: the result was a revised strategy with the following elements:
53 Note here the changing approach to what is “meritorious” as explained by both the Solicitor-General and Mr MacPherson: in the early days this term referred to cases that were regarded as being likely to succeed in court (ie, would overcome the legal barriers to establishing a claim). Over time, reference to a claim being “meritorious” in the historic abuse context came to mean that the factual allegations were likely to be well-founded, regardless of the legal hurdles that might stand in the way of it succeeding if litigated.[15](external link)
54 As Mr MacPherson for MSD explained, MSD took the Cabinet paper with the revised 2008 Strategy to direct settlement where there is a moral value in settling the claim.[16](external link). Mr Wiffin’s case, as acknowledged above, was a case where that did not occur through error (or a series of errors), and as the Solicitor-General said, appeared to have been a case in which the two processes (litigation and informal resolution) should have come together better, but did not.
55 This movement away from reliance on legal defences when considering resolution of claims outside the court process did not happen at a particular point in time: but it is clear that there was a general shift away from relying on the legal defences in this context from 2008.[17](external link) It is acknowledged however that the availability of defences will always have some relevance, in the sense that they are the reason for offering access to an ADR process that proceeds on the basis that there is no legal liability on the part of the agencies.
56 The Crown Litigation Strategy was reviewed in 2011 and the result was that it was to keep operating in broadly the same way, with a new recommendation to settle CHFA claims on a global basis and consideration of broader options for redress including apologies, contributions to legal costs and payment for services and/or ex gratia payments.
57 The most recent iteration of the Crown Litigation Strategy is the (renamed) Crown Resolution Strategy agreed by Cabinet in December 2019, which comprises four overarching principles:
58 Officials were further directed to consider reform of the Limitation Act 2010 in respect of historic abuse claims, and to consider potential options for the central assessment of or review of historic claims. Both are underway, with a terms of reference for a working group to consider the central assessment of claims having been approved on 24 September 2020.[19](external link)
59 In terms of the experiences of survivor claimants, the aspiration of the Crown Resolution Strategy is to ensure the fullest opportunity to resolve grievances early and in accordance with their needs (in terms of the involvement of whānau and others).
60 However, as the Solicitor-General appropriately acknowledged, in the event that a matter proceeds down the litigation route, the court process (with its function of testing evidence and putting plaintiffs to the proof of disputed matters in an adversarial setting) will still apply.
Model litigant policy
61 The “model litigant” concept was addressed by the Solicitor-General. In short, she described the concept as “fair play in action”, being a set of principles which the Crown holds itself to and can be expected to abide by in the conduct of litigation. This expectation recognises the resources of the Crown and the power imbalance that creates. She readily accepted that this approach required the Crown to be held to the highest professional standards.
62 Ms Jagose explained that while the model litigant policy has long been a part of Crown conduct of litigation, it had not, until 2013, been enshrined in any particular document (responding to the 2012 report by Miriam Dean QC and David Cochrane). The “Attorney-General’s Values” were produced and published in 2013 to address this perceived gap: as Ms Jagose made clear, the absence of the term “model litigant” in that document does not indicate a shift away from model litigant principles which are reflected in it.[20](external link)
63 The Solicitor-General appropriately acknowledged in her evidence that there have been times, and particularly in the litigation around the time of the White trial, that model litigant principles have not been adhered to in line with the expectations of the A-G’s Values:
64 In addition to specific steps in litigation that have been dealt with above, other issues have been identified in this inquiry that have demonstrated shortcomings in Crown process. The Solicitor-General accepted that in Mr Wiffin’s case there had been poor practice in a number of respects, including that there had been a failure to connect vital information and therefore to properly engage with settlement of the claim when it should have been seen as meritorious; that Crown Law had said it would interview Moncrieff-Wright and did not and nor did it advise Mr Wiffin of that, even though he had abandoned his complaint to the Police to allow this to occur; that the settlement offer made to Mr Wiffin was a missed opportunity to resolve his claim appropriately.
65 However, as the Solicitor-General also explained, some of the steps taken by the Crown in litigation and criticised by Cooper Legal as “tactics” or conduct that was not in line with its model litigant principles were in reality the Crown acting appropriately to defend cases brought against it in a necessarily adversarial context. Examples included:
66 It also needs to be said (as the Solicitor-General explained) that notwithstanding the Crown’s conduct in accordance with the standards of fair play it has accepted, the litigation process will still be a challenging and difficult process for vulnerable plaintiffs.
67 The Crown recognises that access to the courts is an aspect of civil justice but, as the Solicitor-General acknowledged, Aotearoa/New Zealand’s system of civil litigation will always be based on opposing parties putting the other party to the proof of facts in dispute and seeking to persuade a judge of the rightness of their case.
68 As Ms Jagose said, there may well be room for change in terms of the way that (for example) evidence is given in historic abuse claims, as there have been advances in that respect in the criminal law. She noted that the civil litigation system may not have adapted to advances in learning about the effects of sexual abuse as a result of the ACC scheme.
Para 2.5: The approach to, use or application of legislative provisions, including but not limited to the Limitation Act 1950 (and the subsequent Limitation Act 2010), the Privacy Act 1993, the Official Information Act 1982, and the Accident Compensation Act 1972 (and successive legislation), including whether or how legislative provisions hindered or precluded the ability of individuals to bring or pursue civil claims against the Crown
Information release
69 The Privacy Act and Official Information Act govern the release of survivor claimants’ records (and in a litigation context, the discovery rules apply).
70 The Privacy Act applies to claimants’ request for information about themselves. It prohibits the unwarranted disclosure of any personal information about an identifiable individual unless certain specified exceptions apply.[21](external link) In cases of breach by an agency, an individual whose privacy is breached may complain to the Privacy Commissioner and bring proceedings against the agency.
71 The Official Information Act will apply when an individual requests information that is not their own personal information. One of the withholding grounds under s 9 is that withholding the information is necessary to protect the privacy of natural persons, including deceased natural persons.
72 The requirement to comply with this legislation – and particularly the Privacy Act – means that in many cases, claimants requesting their records find that there are significant and widespread redactions. Redactions will be made generally where other people are referred to: Ms Hrstich-Meyer gave evidence of the difficulties that arose in relation to family files, where MSD cannot release information about other family members without express consent.
73 The agencies have acknowledged and understand the frustration this can cause, but nevertheless need to ensure compliance with their legal obligations to protect privacy.[22](external link)
74 These obligations are imposed under law for good reason, and their significance is perhaps particularly acute in the present context (information is likely to be highly personal or sensitive in nature).
75 It is acknowledged, also, that the process of checking records for releases of information to claimants or their lawyers takes time, and that in some cases the time taken has been unacceptable. Both MSD and MOE have, at times, engaged extra staff to clear backlogs of Privacy Act requests and both have acknowledged there is more work to be done, to expedite this process, while still appropriately ensuring the protection of privacy.
76 Some changes have been made: specifically, Family Court reports on a survivor that were withheld are now able to be released.
77 Ms Hrstich-Meyer noted that MSD was considering the possibility of approaching information release in a different way, so that (depending on the preference of the survivor), rather than receiving large numbers (hundreds) of documents with numerous redactions, it might be possible instead to provide timelines or summaries of the records, that would assist the claimant to understand their care journey without the difficulties associated with release of the records themselves.
78 It is clear, again, that the release of records is an area where further work can be done to bring the (reasonable) expectations of survivors closer to the reality in terms of the timing of receipt of their records and the content of the material when it is received.
79 The final point that should be made in relation to the privacy legislation is that some care needs to be taken in regarding the application of these rules as a “hindrance”: the right to personal privacy has been provided for and protected in legislation for good reason. Having said that, as agencies appropriately acknowledge, these legislative requirements ought not to significantly delay claims; even within the legislative framework there is room for flexibility; and significant work has been completed to speed this part of the process up, particularly within MSD, which has by far the greatest volume of claims.
Discovery (litigation)
80 For filed claims, plaintiffs may seek discovery and will be entitled to see all relevant material held by the defendant agency. The provision of information for the purpose of court proceedings is an express exception to the prohibition on disclosure of personal information in the Privacy Act. That is why the Court in N v Attorney General was able to order that non-redacted versions of records should be disclosed to plaintiffs’ counsel to allow for an assessment of relevance.[23](external link)
Limitation
81 The application of the statutory bars in the Limitation Acts of 1950 and 2010 have been described in the context of this hearing as a technical defence employed by the Crown (at its election) to defeat the meritorious claims of survivors.
82 The Solicitor-General has explained that this characterisation is not accurate, referring to the rationale for the limitation statutes, including the need for finality in litigation.
83 The Crown has agreed to “stop the clock” agreements so that claimants who engage in the MSD ADR process are not disadvantaged in limitation terms by participating in that process. MOE has endeavoured to agree to a similar arrangement but that was not able to be agreed with Cooper Legal.
84 Crown Law has recently drafted a limitation policy that will apply to claims relevant to MOE and MSD. Representatives from Cooper Legal have been consulted in relation to the policy.
85 Mr Knipe confirmed there are no currently active claims against MOH; that for eligibility for its resolution process MOH doesn’t apply any limitation bar, but that in the event MOH needed to consider limitation/stopping the clock (for litigation), that would be in line with the overall Crown approach.
86 Further, as the Solicitor-General explained, policy work in relation to possible legislative reform of the Limitation Act 2010 is underway and will be informed by the work of the Commission.
87 If the Commission reaches the view that limitation defences should not be available to defendants in the present context (or their availability should be limited), any recommendations to that effect would need to be directed to amendment of the limitation legislation. While the defences are available under statute, they will be reasonably available to the Crown, and therefore may be pleaded under the Crown Resolution Strategy, Principle 4.
88 In this regard it is noted that the Limitation Act 2010 presently provides for judicial discretion to grant relief in cases of abuse of a minor (both sexual and non-sexual): ss 17, 18 of the 2010 Act.
ACC bar
89 ACC: Since 1974 (Woodhouse report and resulting legislation) the NZ government has made and maintained a policy choice to abolish the right to sue for personal injury and replace the remedies that a court might award with entitlements under the ACC scheme. The following points should be noted:
Mental health legislation immunities
90 Historic mental health legislation also placed limits on the rights of abuse survivors to bring proceedings in relation to psychiatric institutions, as described in the evidence of Mr Knipe at paragraph 3.3.
Legal Aid for abuse in care claims
91 The grant of legal aid and conditions of any grant are provided for by the legal services legislation[24](external link) and are therefore always subject to statutory constraints.
92 Decisions as to whether to grant or withdraw legal aid are made on the merits and, in the context of claims for abuse in care, Legal Aid has been necessarily responsive to the decisions of the High Court and Court of Appeal. It was also apparent from Mr Howden’s evidence that Legal Aid should not “set people up to fail” by funding cases that were very unlikely to succeed, and would have been creating debt for those individuals: “where there is no real prospect of success it serves no one’s interest to allow false hope, or to subject defendants to what is an inevitably doomed claim against them”.[25](external link) Legal Aid accordingly made an assessment on the prospects of success of a case when considering whether aid should be granted or continued in that case.
93 The change in the Crown approach to provide for alternative resolution processes meant that the required merits assessment changed as the Crown waived reliance on its legal defences for the purposes of eligibility for settlement, therefore making the ongoing requirement that Legal Aid be satisfied of the “prospects of success” less problematic than in the litigation setting.[26](external link) Claimants are able to be funded for their legal costs of participating in these processes.
94 The Legal Services Commissioner is able to waive repayment of debt, which is exercised regularly for abuse in care claimants. This means that claimants do not need to repay their legal aid.
95 Legal Aid worked with Crown agencies to facilitate arrangements so that as part of a settlement, the Crown agency would contribute payment to an agreed percentage of a claimant’s legal aid debt. This resulted in the debt consequences of legal aid being extinguished for most claimants. Although Cooper Legal has criticised the discussions between Legal Aid and relevant agencies leading up to those arrangements (as detracting from the independence of Legal Aid), the outcome benefited the claimants and did not have any detrimental effect on Cooper Legal’s business.
96 Legal Aid’s approach to the historic abuse claims has evolved since the early claims, with significant initiatives being put in place to manage the relationship with Cooper Legal (as the majority provider). Examples include regular meetings with Cooper Legal and the provision for a period of a relationship manager and global billing. Ms Cooper and Mr Howden both gave evidence of the relationship improving following a private mediation arranged by Legal Aid.
97 Cooper Legal were critical of Legal Aid for communicating with claimants directly to advise of the availability of ADR processes. Mr Howden confirmed that this communication was confined to providing information about the processes and did not in any way suggest that clients of Cooper Legal should pursue these claims directly rather than through Cooper Legal. He also explained that the communication was made as Ms Cooper had not been prepared to confirm that her firm was providing this information to her clients, and that Legal Aid obtained advice from a Queens Counsel on its proposal to forward claimants the information on MSD claims processes. Further, as the documents demonstrate, claimants were told that their legal aid would not be changed if they entered the ADR process.
98 The evidence of Legal Aid witnesses was that Legal Aid communicated with agencies only in relation to certain (appropriate) areas:
99 Mr Howden confirmed that there had never been any other communications between Legal Aid and an agency in relation to an individual case.
100 In terms of criticisms of the independence of Legal Aid generally, and in particular since Legal Aid Services has become a part of the Ministry of Justice, the independent role of the Commissioner is covered at paragraphs 2.1 to 2.3 of Mr Dooley’s primary brief and 4.1 to 4.6 of his reply brief.
2.7 The total cost to the Crown of all monetary settlements for civil claims made or filed during the relevant timeframe, and the total expenditure by the Crown on litigation costs in the same period
101 Since 2000, the Crown agencies involved in State care redress have paid approximately $47.8 million in settlement payments, $30.6 million in legal aid or legal fees to assist claimants, and $7.2 million in litigation-related costs. A breakdown of the costs by agency is set out in the appendix to these submissions.
2.8 The extent to which the Crown’s policies, procedures, processes strategies or outcomes conformed to international human rights obligations which were binding on New Zealand throughout the relevant timeframe
102 This issue has been addressed in the evidence of the Solicitor-General.[27](external link)
Crown witnesses – observations on future for historic claims
103 While the Crown was not specifically asked to give evidence on recommendations for reform, various witnesses responded to questions from the Commissioners regarding their perspective on the potential way forward for redress for abuse in care.
104 When giving oral evidence Mr MacPherson described some of the considerations which arise under the broad topic of independence: independence from whom and for what purpose? From agencies who have historically had responsibility for the abuse? From Ministers? Mr MacPherson explained that, irrespective of the structure adopted, Ministers still have to approve expenditure of public money (“I’m not sure how you deliver yourself from budget constraints”) and there is no simple answer here: you won’t deliver yourself from trade-offs, you simply shift those trade-offs to different places. [28](external link)
105 Mr Young also observed that, for any future redress process: “one size doesn’t fit all”. For example, delays will have been unacceptable for some people; but some claimants have said they were pleased to have had some time to process. Future processes need to be adaptable to the wants/needs of individuals and survivors ought to have some input into what they want from the process.
106 Mr Young and the Solicitor-General both commented that it might be best to take lawyers out of the picture in the resolution process, if a trauma informed approach were to be the starting point. [29](external link)
107 Mr Young noted that another huge challenge is quantum. If people are to receive a financial payment should it be compensation? Or is it an acknowledgment of what a person has been through? And, whatever the answer is to that question, what is an appropriate financial payment which acknowledges what a person has been through? And, irrespective of the entity established to assess claims, how does one test a claim? What checks and tests will be employed? [30](external link)
108 Ms Jagose acknowledged that there has long been a call from survivors for a separate entity to provide redress, on the basis that it may well be repugnant for survivors to go to the same institution for redress that housed or employed their abusers.[31](external link) It should also be noted, however, that Ms Jagose observed that as set out in the letter from the Attorney-General to the Human Rights Commissioner in 2011, impartial and prompt investigations can be achieved, as required under the Convention Against Torture, without requiring structural separation, (citing Police Chiefs and Prison Inspectors as examples).[32](external link)
109 Mr Young understood some survivors’ perception that the entity responsible for employing alleged abusers should not also be investigating allegations of abuse. His evidence was that while there has not been independence there had always been impartiality, in that the historic claims process sat outside the CYF, and those working in the historic claims team brought an impartial and survivor focused mind to the claims.[33](external link)
Concluding comments
110 The Crown is grateful to the Royal Commission for providing it with the opportunity to present the agencies’ perspectives on the issues for consideration and looks forward to engaging further with this important inquiry.
Otirā, tēnei te mihi a te taringa are are ki ngā taonga o te kaupapa nei. Rau rangatira mā, tēnā koutou, tēnā koutou, kia ora tatou katoa.
Date: 5 November 2020
...................……………........................
Wendy Aldred | M L Clarke-Parker
Counsel for the Crown
[1](external link) Mr Knipe’s primary brief of evidence, at 4.1-4.14.
[2](external link) See for example Report to Join Ministers of Justice, Health, Education, Social Development and Employment, and to the Attorney-General Historic Claims – Update on Review (15 December 2009) at [7], referenced at 9.7 of Ms Jagose’s primary brief of evidence.
[3](external link) S v Attorney-General [2003] 3 NZLR 450 (CA); W v Attorney-General CA 227/02, 15 July 2003.
[4](external link) Mr Knipe’s primary brief of evidence, at 7.2(h).
[5](external link) Mr Knipe’s primary brief of evidence, at 4.11.
[6](external link) Mr Knipe’s primary brief of evidence, at 4.59.
[7](external link) Mr Knipe’s reply brief of evidence, at 2.16.
[8](external link) In questioning of Mr Knipe, it was suggested that the reason for Mr Stevens’ delay in making a claim in relation to Lake Alice was because Mr Stevens was unaware of the Lake Alice settlement process. Mr Stevens does not state this in his evidence (nor does he rule it out). If any inference may be drawn from Mr Stevens’ evidence about the reasons for his late claim, it is that he found it difficult to talk about his time in psychiatric care until much later; also that his inability to read and write had affected his ability to take the matter further (at 53-55 of Mr Stevens’ affidavit).
[9](external link) Transcript from 28 October 2020 at p 842.
[10](external link) Ms Hurst’s primary brief of evidence, at 4.14.
[11](external link) Ms Hurst’s primary brief of evidence, at 5.3.
[12](external link) Transcript from 28 October 2020 at p 864 and Ms Hurst primary brief of evidence at paragraph 5.35.
[13](external link) Ms Hrstich-Meyer’s primary brief of evidence, at 5.32-5.36. There had been earlier, informal engagement with a group of Cooper Legal clients, all of whom were Māori in 2006 and while valuable, MSD accepted that more substantive and structured consulation should have occurred earlier.
[14](external link) Ms Hrstich-Meyer’s supplementary brief of evidence, at 8.4.
[15](external link) Sir Rodney Gallen in 2009: CB Tab 164 reference to “moral liability”.
[16](external link) Transcript, 20 October 2020, at page 233 (Mr MacPherson).
[17](external link) Transcript, 20 October 2020, at page 233 (Mr MacPherson).
[18](external link) Crown bundle Tab 95.
[19](external link) The terms of reference are attached to these submissions for the Royal Commission’s information. They will be formally provided to the Royal Commission by the statutory declaration of Alana Ruakere, in response to Notice to Produce 20.
[20](external link) See MSC 1077.
[21](external link) Section 6 of the Privacy Act, Information Privacy Principle 11; see also s 29 (agency may refuse a request for information if disclosure would amount to the unwarranted disclosure of the affairs of another individual or deceased individual).
[22](external link) See for example transcript from 27 October 2020 at pages 783-784 (Mr Groom).
[23](external link) N v Attorney-General [2016] NZHC 547.
[24](external link) The Legal Services Act 2000, Legal Services Act 2011.
[25](external link) Ashton v Attorney-General High Court Wellington, CN-2007-485-2711, 8 October 2008, per Simon France J at [75].
[26](external link) Legal Services Act 2000, s 9.
[27](external link) Primary brief of evidence of Ms Jagose at paragraphs 18.1- 18.11.
[28](external link) Transcript, 22 October 2020, at pages 520-521 (Mr Young).
[29](external link) Transcript, 20 October 2020, at page 381 (Mr Young); Transcript, 4 November 2020, at 1367 (Ms Jagose).
[30](external link) Transcript, 20 October 2020, at pages 380-381.
[31](external link) Transcript, 4 November 2020, page 1430.
[32](external link) Transcript, 4 November 2020, page 1444.
[33](external link) Transcript, 21 October 2020, at pages 520-521.
