746. One of the State’s primary responsibilities is to ensure the welfare of its citizens. Legislation that pre-dated the Inquiry period, such as the Crimes Act 1908 and the Child Welfare Act 1925, set out the State’s responsibilities to enforce laws and standards preventing the abuse and neglect of all people in Aotearoa New Zealand, not only those in care.

747. Another of the State’s fundamental roles is that of stewardship. Stewardship is actively planning and managing medium and long-term interests to ensure public investment is sustainable over time and public confidence in them is maintained.[1019] One of the goals of stewardship is to ensure that the parts of the system work well together and will adapt and change to keep working in the long term.[1020]

748. In Aotearoa New Zealand, the State took on increasing responsibility throughout the Inquiry period for directly providing and funding care. From the 1970s on, faith-based institutions, including orphanages and those for unwed mothers, began closing.

749. The State made use of its coercive statutory powers throughout the Inquiry period to:

a. remove children and young people from their homes and place them into social welfare care
b. remove disabled people and people experiencing mental distress and place them into institutions
c. arrest and hold people in police cells and police custody.

750. The State had responsibility for people in care even if they were not placed in care using coercive statutory powers. For example, the State was responsible for the education of children and young people in residential special schools, even though the children and young people had been enrolled by their parents.

751. Throughout the Inquiry period, specific State officials had statutory responsibilities and accountabilities in relation to the treatment of children, young people and adults in State and faith-based care settings.

752. The Crown was responsible for ensuring the guarantees it had made to Māori in te Tiriti o Waitangi were upheld as they related to care. It was also responsible for ensuring that the human rights of families, whānau, and people in care were respected, protected and fulfilled.

753. The State was ultimately responsible for safeguarding all children, young people and adults in care, regardless of the care setting and preventing and responding to abuse and neglect. This chapter explains that the State failed many children, young people and adults who had care or support needs. It sets out that the State should have known the care system was failing people in care and failed to respond adequately due to the information it had about abuse and neglect in care.

I hapa te Kāwanatanga i roto āna kawenga pūnaha taurima
The State failed to uphold its responsibilities for the care system

754. The State failed to uphold all of its responsibilities for the care system, which contributed to abuse and neglect. This section sets out the following failures:

a. the State did not give effect to te Tiriti o Waitangi or fulfill its human rights obligations
b. legislative and policy settings were discriminatory and ignored people’s rights
c. this discriminatory approach reflected a lack of diverse leadership
d. people in care had limited input into State decision-making
e. the State’s attempts to address institutional discrimination fell short
f. the State did not ensure that people in care were safeguarded from abuse and neglect
g. the State lost sight of its core regulatory, enforcement and funding functions
h. the State’s highest-level decision-makers rarely took accountability for abuse and neglect in their care
i. The State did not implement a national care safety framework. 

Kīhai i eke te whakamana a te Kāwanatanga i te Tiriti o Waitangi i ngā mōtika ā-tangata rānei
The State did not give effect to te Tiriti o Waitangi or fulfil its human rights obligations

755. As discussed in Part 6 of this report, tamariki Māori, rangatahi Māori and pakeke Māori in care are taonga. While assuming ultimate care and responsibility or an oversight role for these taonga, the Crown failed to protect or prevent the abuse that many suffered. This was a grave breach of the Crown’s obligations of active protection.

756. The care systems into which Māori were taken and placed during the Inquiry period were generally a “Pākehā-centric one-size fits all” approach that was culturally inappropriate for Māori. Māori thinking, approaches and values were not incorporated into the care systems for tamariki, rangatahi and pakeke in care. The lack of kaupapa Māori options as part of the care systems breached te Tiriti o Waitangi principle of options, partnership, active protection, and equity.

757. In 1989, the State started to include references to whānau, hapū, and iwi in legislation.[1021] However, these legislative references were piecemeal, criticised as lacking cultural sophistication and faced barriers to implementation, such as structural and institutional racism.[1022]

758. The State should have progressively respected, protected and fulfilled the human rights of children, young people and adults in care, their families and whānau, including those in the care of faith-based institutions. Instead, the State generally left it to individual institutions, foster homes and faiths, to decide whether and how to respect these rights.

Ko ngā takinga ā-ture, a kaupapa he mea toihara, kīhai i aro ki te tika o te iwi
Legislative and policy settings were discriminatory and ignored people’s rights

759. Earlier parts of this report explain how the State’s legislative and policy settings and practices contributed to abuse and neglect in State and faith-based care during the Inquiry period. Māori, Pacific Peoples, Deaf, disabled people, people experiencing mental distress and Takatāpui, Rainbow and MVPFAFF+ people in care were disproportionately affected.

760. The State pursued a policy of institutionalisation of Deaf, disabled people, and people experiencing mental distress at the beginning of the Inquiry period. Having engaged with international experts and the World Health Organisation from the late 1940s, the Intellectually Handicapped Children’s Parents’ Association lobbied for community-based care and petitioned this in Parliament in 1950.[1023] The 1959 Burns Report, released by the Aotearoa New Zealand Branch of the British Medical Association, criticised the State’s policy of institutionalisation and recommended community-based care.[1024]

761. At the Inquiry’s State Institutional Response Hearing, the State acknowledged that the 1973 Royal Commission into Hospital and related services found that the Crown’s policy of institutionalisation was inconsistent with international best practice.[1025]

762. The State often failed to provide concrete support or special measures to families, whānau or parents in need, which affected their ability to care for their loved ones at home.[1026] The State often failed to adequately explore other community or family-based options that prevented the need for out-of-whānau care.[1027]

763. Discriminatory legislation, policies and practices reflected the views and attitudes of the people who designed them.[1028] By and large, decision-makers lacked diversity and lived experience of care.[1029] The perspectives of children, young people and adults in care were largely not considered in the design of legislation, policies and practices that affected them.

Ko te toihara o āna mahi he tohu o te kore i whānui te toronga o āna mahi arataki
Discriminatory approach reflected a lack of diverse leadership

764. Many of the people in policy leadership roles during the Inquiry period lacked diversity and lived experience of care.[1030] At a conference in 1982, the State Services Commission framed the issues as:

a. a lack of reliable statistical information on the diversity of the public service
b. different cultural values and needs were not being accurately understood or given due weight
c. the people who made up the public service did not adequately reflect a diverse society.[1031]

765. The State Services Commission said:

“Clearly, if an effective and efficient service is to be provided for a multicultural society, this means that within the process of planning, policymaking and in the provision of services, the different needs of this diverse population have to be understood and accommodated.”[1032]

766. The conference resolved that special recruitment and training programmes were needed to increase diversity, with those programmes appointing diverse people directly into positions of seniority and responsibility.[1033]

767. In 1988 the Puao-te-Ata-Tū report noted that inadequate diversity in leadership and policy roles were resulting in harm to tamariki and pakeke Māori.[1034] The Inquiry was told that there were attempts to recruit more Māori social workers and managers after this, but they were not “in a position to make decisions”.[1035]

768. In 1998, a review found that little had changed across the public service with diversity recruitment tending to focus on junior entry level positions.[1036]

He kūiti nei te wātea o te hunga i roto i ngā pūnaha taurima, whānau me ngā hāpori ki te tuku whakaaro ki ngā whakatau Kāwanatanga
People in care where, whānau, and communities had limited input into State decisions

769. The State’s decisions about legislation and policy settings had little input from those who would be affected by their implementation.

770. Children, young people and adults in State and faith-based care, their whānau, kainga (family) and communities all played a limited role in policy design and decision making. The perspectives of survivors of abuse and neglect in care were also not considered by decision-makers. This led to the development of inadequate laws, policies and practices that did not reflect the needs of people in care, their whānau, kainga (family) or communities, which contributed to abuse and neglect in care. Many survivors, people in care, whānau, kainga (family) and community members felt ignored, disempowered and excluded from policy design and decisions that affected them.[1037]

771. At the Inquiry’s State Institutional Response Hearing, Oranga Tamariki Chief Executive Chappie Te Kani acknowledged that “historically Māori perspectives and solutions have been ignored across the care and protection system”.[1038]

772. At the Inquiry’s State Institutional Response Hearing, Whaikaha Acting Chief Executive Geraldine Woods, acknowledged that alternatives to care in the health and disability care settings were not adequately considered. This included not always supporting families in need and whānau, hapū and iwi to safely care for their tamariki and whānau hauā.[1039]

I tū poto ngā torotoronga a te Kāwanatanga ki te whakatika o ngā mahi toihara ā-hinonga
State’s attempts to deal with institutional discrimination fell short

773. From the late 1980s onwards, the State did take some steps to address institutional discrimination, particularly racism, and how it impacted the disproportionate numbers of Māori and Pacific Peoples in care settings. For example, the release of Puao-te-Ata-Tū in 1988 resulted in widespread changes, including the Children, Young Persons and their Families Act 1989. The changes often amounted to incorporating a bicultural element into government business as usual, rather than driving fundamental change. At the Inquiry’s State Institutional Response Hearing, Chappie Te Kani, Chief Executive of Oranga Tamariki, acknowledged the Crown failed to fully implement Puao-te-Ata-Tū in a comprehensive and sustained manner.[1040]

774. Māori survivor Tupua Urlich (Croatian, Ngāti Kahungunu), who was taken into care and protection when he was aged 5, illustrated the gap between the attempts to address racism and the lived reality for survivors when he told the Inquiry:

“the only time I saw reference to te ao Maori was outside of the education center in a CYPS building, there were koru patterns in the glass frostings of the meeting rooms”.[1041]

775. At the close of the Inquiry period, institutional discrimination persisted and continued to disproportionately influence who entered care and who experienced abuse and neglect when in care.

Kīhai i eke ngā whāinga a te Kāwangatanga ki te tauārai i ngā mahi tūkino
The State did not ensure people in care were safeguarded from abuse and neglect

776. The State had a responsibility to ensure people in care had effective safeguarding, with comprehensive and well-resourced oversight and monitoring. However, the lack of effective safeguarding contributed to abuse and neglect, with ineffective oversight and monitoring that did little to prevent or respond to that abuse and neglect.

777. The State generally took a hands-off approach to safeguarding, leaving the development and implementation of safeguarding to individual institutions, foster homes, family homes, schools and hostels and transitional and law enforcement settings. This not only meant there was a lack of a consistent and coherent approach to safeguarding across all care settings but also meant that institutions were not held to account for poor safeguarding practices and policies. As a result, people in care suffered abuse and neglect and little was done to address the harm that occurred.

I tahuri kē te Kāwanatanga i ana whāinga matua ā-ture, whakamau kaupapa, toha tahua pūtea
The State lost sight of its core regulatory, enforcement and funding functions

778. During the Inquiry period, there was no comprehensive regulatory framework enforced and appropriately funded across all State and faith-based care settings. Laws relating to care settings were largely developed in isolation from each other, creating gaps in the overall care landscape.

779. The concept of strategic policy and regulatory stewardship did not exist in government until the late 1980s. It emerged as part of the wider reforms to the public service, with a new framework of performance goals and responsibilities set out in the State Services Act 1988 and the Public Finance Act 1989.[1042]

780. In the early 1990s the government introduced tools to assist with strategic planning, including strategic result areas for the governments major strategic goals, and key result areas for chief executives for each Department.[1043] The first modern strategy documents began to appear, including some relevant to care settings, but the State still lacked a deliberate approach to how it regulated care settings and did not design and implement a coherent and comprehensive regulatory framework for care in Aotearoa New Zealand.

781. The Inquiry saw little evidence of the State systematically carrying out its regulatory function of monitoring care standards, identifying breaches of care standards and enforcing standards through meaningful penalties and sanctions. If the State had consistently monitored care facilities and held senior leaders and managers of care facilities, and the facilities themselves, to account for breaches of legal care standards, this could have prevented abuse and neglect.

782. The Inquiry heard evidence that the State failure to provide adequate resourcing for the care system contributed to abuse and neglect. For example, inadequate resourcing of State care facilities and their staff contributed to:

a. high social worker caseloads, which led to fewer (or no) face-to-face visits with children and young people in care
b. inadequate or absent training and development of staff and carers
c. unsuitable and rundown care facilities.

783. Inadequate resourcing of independent oversight and monitoring entities limited their ability to investigate and report on complaints about abuse and neglect in State and faith-based care.

He onge te wā i kitea ngā kaiwhakatau kaupapa matua a te Kāwanatanga e kawe ana i ngā mahi tūkino i ngā pūnaha taurima
The State’s highest-level decision-makers rarely took accountability for abuse and neglect in care

784. Throughout the Inquiry period, specific State officials had statutory responsibilities and accountabilities in relation to the treatment of people in their care, including:

a. in Deaf, disability and mental health settings, the:

i. Director-General of Health[1044]
ii. Director of Mental Hygiene[1045]
iii. Director of Mental Health[1046]

b. in social welfare settings, the:

i. Superintendent of the Child Welfare Division, Department of Education[1047]
ii. Director-General of the Department of Social Welfare[1048]

c. in education settings, the:

i. Minister of Education[1049]
ii. Director-General of Education[1050]

d. in transitional and law enforcement settings:

i. the Commissioner of NZ Police.[1051]

785. Despite these statutory responsibilities and accountabilities, the State was often defensive and denied it was accountable for abuse and neglect in care.[1052] The State would often adopt an adversarial or litigious response to disclosures or claims about abuse and/or neglect in care, or delay or defer dealing with disclosures or claims. The State often did not believe survivors, which was at times underpinned by discriminatory societal attitudes, such as not viewing disabled people or people experiencing mental distress as credible witnesses or seeing children and young people in care as manipulative liars.

786. The State failed to consistently hold other State and faith-based institutions and the responsible senior managers and leaders to account for abuse and neglect of people in their care. Across all settings, the State’s hands-off approach to accountability contributed to abuse and neglect in many settings, particularly in faith-based care. These failures contributed to a sense of impunity amongst those responsible for abuse because they were rarely held to account.

787. Former Chief Human Rights Commissioner, Rosslyn Noonan, wrote in her statement to the Inquiry that:

“Over more than 50 years of claims of abuse in care, to my knowledge, no one in a senior position in any of [the] responsible agencies has been held to account.”[1053]

E tika kē ana te Kāwanatanga kia mataara ki ngā pāruretanga o te hunga i ngā pūnaha
The State knew or should have known that the system was failing people in care

788. Throughout the Inquiry period, the State faced increasing reports of concern and complaints about abuse and neglect in State and faith-based care, across all care settings.[1054] Those concerns and complaints came to its attention through government agencies like the Departments of Social Welfare, Health, Education, NZ Police, and through numerous oversight and monitoring bodies. Many reports and reviews, some commissioned by the State, and others independent, found evidence of abuse and neglect in care. For example, the Auckland Committee on Racism and Discrimination, Ngā Tamatoa, and Arohanui Inc inquired into such matters:

“The Inquiry [by ACORD, Ngā Tamatoa, and Arohanui Inc] was called because of the refusal by the Social Welfare Department to investigate public allegations of cruel and inhuman treatment towards children entrusted to its care in Social Welfare Homes.”[1055]

789. Almost all of the reviews were focused on specific facilities such as Lake Alice Child and Adolescent Unit, or care settings such as borstals or mental health settings.[1056]

790. The State knew from the 1970s that widespread and unlawful abuse and neglect was occurring, that in some institutions it was prevalent and extreme.[1057] From the 1990s, the State faced growing numbers of claims in the courts about abuse and neglect in State care.[1058]

791. While the State took steps to address concerns or implement recommendations related to the specific institutions or care settings in these reports and reviews during the Inquiry period, it does not appear to have taken steps to consider whether any of the problems identified were system-wide. It also missed opportunities to consider coordination and alignment across different parts of the care system. For example, two significant reports about different parts of the care system were released in 1988 – the first, Mason report on mental health services and second, Puao-te-Ata-Tū on social welfare care.[1059] Both reports eventually led to significant legislative change to improve mental health services (the Mental Health (Compulsory Assessment and Treatment) Act 1992 and care and protection and youth justice matters (the Children, Young Persons and Their Families Act 1989). There is no evidence that the State took the opportunity presented by the timing of the two reports to take a wider system-level view to make consistent changes across the whole care system at this time.

792. Where reports and reviews identified instances of abuse and neglect of children, young people and adults in care, the State did not take steps to understand the full extent of the issue. There is no evidence that the State gathered or analysed data from its own government agencies on the number, nature and location of complaints to understand the nature and extent of abuse and neglect in care. Instead, the State told the Inquiry numerous times that their evidence was limited by their only having access to limited information or being unaware of issues.[1060]

793. The State should have taken steps during the Inquiry period to understand whether:

a. abuse and neglect in care was systemic
b. the care system was failing people in care
c. any of the State’s changes to prevent and respond to abuse and neglect in care were reducing, increasing or neutral as to rates of abuse and neglect
d. to what extent the State contributed to abuse and neglect.

I tāpokihia e ngā tari Kāwanatanga to rātou aro kore ki ngā auheke o ana pūnaha
The State’s structure clouded how it reacted to signs of system failures

794. The structuring of government agencies explains in part why the State failed to take a system-wide approach to abuse and neglect in care. It also explains why there was so much variability to care across and within care settings.

795. Government agencies were structured to implement the policies and priorities of the Minister they reported to, with strong vertical reporting lines and no formal tools for cross agency working. For individual care settings, agencies were only looking at and advising individual Ministers on problems in care relevant to them. When individual government agencies identified a problem relevant to them and designed policy solutions, they were designing policy solutions for discrete parts of a care setting – even though that problem and solution likely applied across all settings.

796. As well as clouding the ability of government agencies and Ministers to see the systemic problems happening across care settings, frequent re-structuring of government agencies during the 1990s also impacted the State’s approaches to fixing those problems. When strategic approaches did emerge in the 1990s, they proved to be complex with many stakeholder interests to balance, bureaucratic processes to navigate and often a need to link a strategy and its implementation across multiple Departments, Crown entities and non-governmental bodies.[1061]

797. Many of the strategies relevant to care settings in the 1990s, while they demonstrated strategic thinking and attempts at a cross-departmental strategic approach, failed to deliver widespread change due to factors like a lack of clear targets; lack of progress reviews; changes of government which saw priorities shift; and difficulty navigating agency silos. Different targets and bureaucratic processes across agencies and a focus on individual output arrangements could all act as barriers.[1062] As shown in Inquiry’s interim report, He Purapura Ora, he Māra Tipu: from Redress to Puretumu Torowhānui some people in care only experienced a coordinated State approach when they made a claim in the courts about their experiences of abuse and neglect.

Kīhai i whakatūria e te Kāwanatanga he tūāpapa āhuru a motu mo ngā pūnaha taurima
The State did not implement a national care safety framework

798. The State should have responded to signs of systemic abuse and neglect, and that the care system was failing children, young people and adults in care, with a national framework to safeguard all people in care and prevent and respond to abuse and neglect.

799. A national framework for safety in care should have been designed in partnership with Māori and co-designed with people in care, their whānau and communities. This national framework for care could have been made up of:

a. legislating to give effect to the guarantees made to Māori in te Tiriti o Waitangi, particularly tino rangatiratanga
b. legislating to respect, protect and fulfill the human rights of people in care and their whānau
c. a suite of concrete supports or special measures that prioritised the reduction of inequities for whānau, kainga and communities, supported them to provide care and support at home, and minimised entry into out-of-whānau care
d. a single, overarching national strategy for safety in care that applied to all care settings, seeing them as part of one care system inclusive of faith-based care settings
e. a set of easily accessible standards of care that applied to everyone in care, that could be tailored to their needs and culture, regardless of who they were and where they were
f. transparent, accessible and responsive complaints processes, including access to advocates
g. blanket safety checking requirements that applied to all staff, volunteers and carers, regardless of their status and role
h. consistent mandatory reporting requirements for staff and carers
i. consistent accountability for abuse and neglect in care, with swift and effective penalties for non-compliance
j. steps to minimise and ultimately end institutionalised environments and practices
k. best practice training and development standards for staff and carers
l. independent, strategic, well-funded independent oversight and monitoring that looked across all care settings and consistently reported abuse and neglect to NZ Police.

Ngā akonga i kitea hea mea panoni
Lessons identified and changes made

800. During the Inquiry period, the State attempted to make some changes to address problems identified in different care settings and to prevent and respond to abuse and neglect in State and faith-based care.

801. Most changes were specific to certain care settings. These changes included the creation of new legislation, policy, rules, standards and practices to prevent and respond to abuse and neglect in care as well as subsequent tweaks to these regulations, as new lessons were learned. Several of these changes had a positive impact on people in care, while some had intentions that were not achieved in practice.

802. Key changes made in response to lessons learned were:

• The Adoption Act 1955 – This Act tightened controls over who could adopt a baby; it included that all applicants had to be approved by a Child Welfare Officer.[1063] The Act did not, and still does not, recognise disabled parents’ rights – section 8 states the Court can dispense with the consent of a parent or guardian where it is satisfied that the parent or guardian is unfit by reason of physical or mental incapacity to have the care and control of a child, where that unfitness is likely to continue indefinitely and following reasonable notice to that parent or guardian.[1064] This means that where certain conditions are met, a court can decide an adoption can proceed without a disabled parent or guardian’s consent.[1065]
• Child Welfare Division Field Officers Manual 1957[1066] – The first written policies and practice guidelines for Child Welfare Officers were introduced in 1957. This set minimum standards of care that State wards should receive, for example, that they must have their own bed and they must be visited at least once every four months. It also said the investigation of complaints about danger to a child’s life, or suspicions of serious neglect or cruelty, was to take precedence above all other duties. The subsequent iterations of this manual contained the same or improved provisions as lessons were being learned about the standards needed to keep children in care safe. The Inquiry has received evidence of multiple instances where these standards were not met, such as social workers failing to visit State wards as often as required.[1067]
• Mental Health Act 1969 – For the first time the Act set time limits for patients being subject to compulsory detention and. created three categories of patients – special, committed and informal.
• Child Welfare Division Field Officers Manual 1970 – replaced the previous 1957 social work manual. It contained many of the same provisions and added some new ones. For example, that NZ Police should be advised in cases of cruelty and ill-treatment, unless the Child Welfare Officer had “good reasons for not wishing to do so, in which case he should consult the Superintendent.”[1068] It also considered additional criteria for assessing prospective caregivers.[1069]
• Closing of large institutions for Deaf, disabled and mentally distressed persons – This was first pushed for in the 1950s but did not gain traction until the 1970s which led to three decades of deinstitutionalisation. [1070] It was not until 2006 that the last institution, Kimberley, closed.[1071]
• Accident Compensation Act 1972 – Introduced no-fault cover for personal injury caused by accident, for all people in Aotearoa New Zealand, including workers who were disabled as the result of accident who were previously covered by the Workers' Compensation Act”.[1072]
• Children and Young Persons Act 1974 – Placed the “interests of the child or young person as the first and paramount consideration”.[1073]
• Residential Workers Manual circa 1975 – This was the first manual that was specific to the field of residential social workers and “the many staff in the department who work in various roles, in different types of institution … ”
• Disabled Persons Community Welfare Act 1975 – Provided financial and other assistance for disabled people, and support for private organisations that provide facilities for disabled people to help them stay in the community.
• NZ Police’s Wanganui Computer System set up in 1976 – This was the first centralised database of criminal convictions. However, initially the Department of Social Welfare was the only department with care responsibilities that could access the database and only in cases of foster care or adoption.
• Intensive Foster Care Schemes 1980 – The Department of Social Welfare established Intensive Foster Care schemes to match children with carefully selected foster parents, who received training, advice and support. There was a lack of Māori and Pacific parents and some foster carers indicated that they would prefer Pākehā children.
• Borstals closed 1981 – The last borstal was closed by the Criminal Justice Amendment (No 2) Act 1980.[1074]
• Department of Social Work Manual 1984 – This replaced the 1970 Field Officers Manual. It had two volumes and was the most comprehensive practice handbook the department had produced to date, covering both field and residential social work. It saw some new provisions, for example, that “State wards were to be seen on the same day where concerns were raised about safety”.[1075] It also emphasised that it was essential to try and match a foster child to a foster home before any long-term arrangements were made. [1076]
• The Children’s and Young Persons (Residential Care) Regulations 1986 –The regulations included provisions on professional standards of care, inspection of institutions, grievance procedures for children and young people, access to health and education and so on. It also prohibited the use of corporal punishment and humiliating or degrading discipline.
• Care and Protection and Youth Justice Handbooks 1989 – The care and protection handbook was the first manual that contained a section specifically on child sexual abuse. It stated that a social worker must involve NZ Police if there was an allegation of sexual abuse.[1077]
• The Children, Young Persons, and Their Families Act 1989 – Introduced several new legislative provisions, including Family Group Conferences. It distinguished between children being taken into care for the purpose of protection and for the purpose of youth justice.[1078]
• Education Act 1989 – For the first time, the right of all disabled children and young people to enrol and receive an education at their local State school was recognised.[1079]
• Corporal punishment – This was abolished in policy in 1987 and legislatively in 1990.[1080]
• Independent Police Complaints Authority 1989 – Established an independent complaints body. Before this, when anyone made a complaint about NZ Police it was investigated internally by the NZ Police.
• Mental Health (Compulsory Assessment and Treatment) Act 1992 – Defined the circumstances and manner in which a person may be assessed of the need for treatment, and if that need is established, then how that compulsory treatment should be provided. Emphasis is upon consideration of the need for treatment and the provision of that treatment is the least restrictive environment possible. Established standards of care for patients who were assessed and treated under a compulsory order. The Act set out patient rights at a high level, covering matters such as respect for cultural identity and personal beliefs, the right to company, the right to be informed about treatment, and the right to send and receive mail and make phone calls.[1081]
• New Zealand Community Funding Agency 1992 – This became responsible for contracting care providers under the Children, Young Persons and their Families Act 1989. Created additional standards for approval to ensure that the organisations had the capacity to provide care for the needs of disabled children and young people.[1082]
• Health and Disability Commissioners Act 1994[1083] – This established an individual complaint system. It protects the rights of patients to be treated with respect, dignity and independence, to have proper standards of care, to make informed choices, to have protection of privacy and to receive support.
• Oranga Tamariki (Residential Care) Regulations 1996 – This replaced the 1986 regulations. Included the requirement for residences to have an operational complaints and grievance procedure and gave residents the right to “object to the imposition of a punishment or sanction”[1084].
• Mental Health Commission 1996 – This was established following the 1996 Mason report into mental health services. The intention was for it to be an independent statutory body with the purpose of implementing the National Mental Health Strategy.[1085]
• Care and Protection and Youth Justice Handbooks 1998 – These handbooks replaced the 1989 ones and provided “comprehensive information for social workers, coordinators, supervisors and managers in the New Zealand Children and Young Persons Service.” It detailed the responsibilities of these workers under legislation. Some provisions were improved, for example, it changed how frequently children and young people in care should be visited from at least once every four months to at least once every two months.
• Mental Health (Compulsory Assessment and Treatment) Amendment Act 1999 – Changed several provisions of the 1992 Act to improve the process of compulsory assessment and treatment orders by requiring additional documentation and procedures to protect patient rights and improve their experience of the process, while clarifying the powers and limitations of agencies in relation to the Act. An obligation to consult with family or whānau was included. Changes were also made to strengthen the role of District Inspectors and reporting to the Director of Mental Health, in response to a report by Professor Michael Taggart to the Ministry of Health on the role of the Director, District Inspectors, and Directors of Area Mental Health Services.

803. Some settings, like social welfare, experienced continuous changes to legislation, policy and practice across the latter part of the Inquiry period. These changes appeared to be made with good intent and occurred alongside lessons that were learned. Some lessons were highly important and had significant impacts on children in care. These included a greater understanding of the dynamics of sexual abuse, the importance of a child’s culture and community, the harm of corporal punishment and psychological abuse and the impacts of past trauma. In response, the State tried to make changes to reflect these learnings, albeit sometimes slowly. The Inquiry heard that other changes however, like tweaks to policy as discussed in earlier chapters, were too frequent for social workers and ground staff to keep up with, which led to inconsistent application across offices and practice not meeting intent.[1086]

804. In other settings, like disability and mental health, there were successive calls for change from families, whānau, communities and advocacy groups. The State, however, was slow to implement change and generally left decision-making powers to institutions themselves as discussed in chapter 4. It was not until 1992 that the State set legislative protections for people subject to compulsory treatment.[1087]

805. While deinstitutionalisation of care was an important step taken during the Inquiry period, there was a widespread practice for many years of institutionalising Deaf, disabled people and people experiencing mental distress, removing them from their families, whānau and communities. The push for deinstitutionalisation began in the late 1950s but it was not until the 1970s that these ideas finally began to take hold. Even then, the State was slow to make real change and it took three decades before the last institution closed.[1088] Deaf children and young people, disabled children and young people, and children and young people experiencing mental distress, were segregated and isolated from mainstream education for most of the Inquiry period, only receiving a legislative and equal right to attend local State school in 1989.[1089]

806. As discussed in earlier chapters, faith-based settings were often excluded from State imposed regulations and while some internal standards were introduced as lessons were learned, these did not adequately respond to the scale of abuse and neglect being experienced.

807. During the Inquiry period, the State knew that Māori were the majority of people in social welfare care settings and disproportionately represented across other care settings but generally did not make changes to respond to this until the late 1980s and 1990s.[1090] There were several attempts to address overrepresentation of Māori through changes to policy and legislation, including with the recognition of whānau, hapū and iwi in the Children, Young Persons, and Their Families Act 1989.

808. International and national research informed how the State viewed youth justice and reoffending rates, Before and over the Inquiry period, as well as how this disproportionately affected Māori rangatahi. Following the example of several other countries, Aotearoa New Zealand formally established a children’s court in 1925 which separated youth offending from adult offending and had the intention of shifting from a punitive approach to a more welfare-based approach.[1091]

809. The State continued to make certain changes that reflected this intention, for example in 1961 the criminal age of responsibility was raised from seven to ten and in 1985 imprisonment of a person under the age of 16 was forbidden, except for a purely indictable offence.[1092] However, the State also continued to operate care settings for youth offenders that were not reflective of best practice or the lessons being learned at the time. For example, a 1969 review of borstal policy in Aotearoa New Zealand by the Minister of Justice found there were "a number of shortcomings in the present borstal system", these included: overcrowding was a serious problem; most borstals were too large for staff to achieve close personal relationships with trainees, undermining the influence that some of the more difficult inmates had on others; the need to obtain more qualified staff and improve staff training; the need to improve arrangements for after care; and the need for more educational influences in borstal training[1093]

810. Issues with overcrowding in youth institutions continued from 1970 to 1976. With the Department of Justice noting in their 1976 annual report that they "regret that for the sixth year in succession it is necessary to say that the problem of overcrowding still bedevils our efforts to implement a penal policy which reflects a humane concern for the individual needs of each inmate".[1094] High inmate numbers also put pressure on staffing and in 1976 it was noted that staff were "being asked to carry a greatly increased load".[1095] The Department's 1978 annual report recorded that there had been "some respite from overcrowding in youth institutions".[1096]

811. Borstals were not closed until 1981 and the youth justice settings for youth offenders that operated throughout the rest of the Inquiry period often operated on a military-style basis in harsh conditions unconducive to rehabilitation. These care settings fostered abuse and led to further offending.

812. A 1984 review on the abolition of borstal training found that although the name of youth justice programmes and the policies relating to them had changed over the years, the places remained the same and "the same old things are done in the carrying out of the new policy".[1097]

813. In addition, ethnic disparities remained significant. Māori rangatahi continued to come to the attention of the State at a much higher rate than non-Māori and faced custodial sentences at a much higher rate than non-Māori.[1098] The State’s ineffective approach to youth justice throughout the Inquiry period, as well as its failure to adequately address structural racism within the criminal justice sector, further compounded the negative impacts on Māori.

814. These legislative and policy changes can largely be seen as a good faith attempt by the State to address lessons identified and to respond to and mitigate abuse in care. However, as discussed earlier in this chapter and in chapter 11, if these changes do not occur alongside a shift in discriminatory societal attitudes such as racism, ableism, sexism and homophobia, then harm will continue to be perpetrated by the State and by those working within care settings.[1099]

815. With hindsight, much more abuse and neglect could have been prevented if changes had been applied consistently across all settings and implemented differently. At times, the changes did not always reflect the broader lesson learned, such as (but not limited to) the importance of safeguarding or protective factors, or the role of record keeping, complaints, independent oversight and monitoring and a national framework to surface and respond to the true extent of abuse and neglect in care. The changes often reflected discrete elements of a lesson which limited their potential impact for preventing and responding to abuse and neglect in care.

816. Implementation repeatedly frustrated successful change. Common failures of implementation included funding and resourcing constraints, lack of diversity in leadership positions, policy design and service delivery, as well as people in care and their families, whānau, and communities not being informed of change or being empowered to make their own decisions about what supports and care they needed. Some of these implementation issues resulted in further abuse and neglect.

817. Changes generally occurred from the 1980s onwards with a clear correlation between these changes and the Inquiry’s finding in Part 4 of this report, that the abuse of people in care was at the highest levels in the 1970s followed by the 1960s and then the 1980s. However, as the Crown acknowledged at the Inquiry’s State Institutional Response Hearing:

“... despite all those changes, what is abundantly clear is that there is a bleak history of abuse in care, of behaviour that is unacceptable in any society and in any time period.”[1100]

He kōrero mutunga mo ngā kawenga Kāwanatanga mo ngā pūnaha taurima
Conclusion on the State’s responsibility for care

818. The State had a responsibility to provide a coherent and comprehensive care system that effectively safeguarded all people in care. It had a responsibility to monitor that system, to know whether people in care were being safeguarded, and to act decisively when it knew abuse or neglect had happened, to prevent it happening again, and ensure abusers and care providers were held accountable.

819. The State had responsibilities to protect the human rights of families, whānau, and people in care. The State was also responsible for giving effect to the guarantees it made to Māori in te Tiriti o Waitangi.

820. Instead, there were grave breaches of standards of care and te Tiriti o Waitangi across all settings and throughout the Inquiry period.

821. There is evidence to suggest that the State knew the potential nature and extent of the abuse and neglect in care but did not take steps to investigate further. Instead, it took a defensive, adversarial approach to deny, defeat or limit claims of abuse and neglect with the aim of avoiding the financial and legal implications of being found accountable.[1101] There was evidence that the State was not only aware of deliberate steps to move, protect or employ abusers, but in many instances, it was senior leaders within the State taking those deliberate steps. The Inquiry is not aware of any senior leaders being held to account for abuse and neglect, or for taking deliberate steps to avoid accountability.

822. There is consistent and persistent evidence that the State prioritised managing its reputation, limited its liability and accountability, neutralised or covered over institutional abuse, over safeguarding people in care, despite fifty years of evidence and awareness that all parts of the care system were failing people in care.

823. Instead of providing everyone with equal and informed access to the type of care and supports they needed, and were entitled to based on their human rights, or their rights guaranteed to them in te Tiriti o Waitangi, people were treated very differently depending on who they were, or where they were, resulting in discriminatory and inadequate care, contributing to abuse and neglect.

Footnotes