574. This chapter responds to clause 32A of the Inquiry’s Terms of Reference, which relates to recommendations to ensure that the factors that allowed abuse and neglect to occur during the Inquiry period do not persist. As provided for in clauses 15A and 15B of its Terms of Reference, the Inquiry has considered issues and experiences after 1999 shared by survivors, including those set out below.[291]

Ngā wheako purapura ora mai i te tau 1999
Survivors’ experiences after 1999

575. Survivors told the Inquiry about a range of issues and experiences after 1999 including experiences of persistent disadvantage, a lack of support in the community, not having a say in the design and delivery of care, and the impacts of discrimination. They also told the Inquiry about their experiences of abuse and neglect, and the issues they had understanding what was happening to them and who to turn to for support.

Ngā wheako o te noho pēhia tonu
Experiences of persistent disadvantage

576. Scottish and Papua New Guinean survivor Jamie Henderson, who was first placed in youth justice residential care in 2016, when he was aged 14, told the Inquiry:

“I remember having no food growing up…my mum was a good mum, she just needed support and I think I would’ve had a better life if she got the support she needed.”[292]

577. Rangatahi from Te Rōpū Kaitiaki mō ngā Teina e Haere Ake Nei told the Inquiry that:

“Lack of support for caregivers to provide the best care possible puts good people off. Neither parents or caregivers are given the support needed.[293]

My mum was put in to care when she was really young and wasn’t good. When she was 15 she started taking off. She was abused so badly. That is why me and 8 other siblings were put into care…. I am always mamae about the support she didn’t get.[294]

(We need a) space where you’re not just talking about problems - you are talking about life skills and flourishing like how to grow a garden, how to be useful ... if we had programmes like this people would feel more support.”[295]

578. Pākehā survivor Ms QB, who was take into the care of Child, Youth and Family in 2015, when she was aged 15, shared:

“When I reflect on my experiences with CYF I believe that the system set me up to fail by first being so unwilling to become involved in the early stages when intervention would have been the most useful, then by offering piecemeal care which was not appropriate.”[296]

Te whai wāhi o ngā hāpori i ngā mahi atawhai me whakatau kaupapa hoki
Community involvement in care and decision-making

579. Māori survivor Mr RA (Rongomaiwahine), who was first placed in a care and protection residence in 2001 when he was aged 12, told the Inquiry:

“In terms of what changes need to be made for children who are now going through the care system… it’s letting iwi, hapū and whānau have more say in the care of children. That’s the only way we are going to be able to keep our kids safe and make sure they are being cared for properly.”[297]

580. The Inquiry heard from NZ European Franky Lewis about her experiences seeking support for her son Keegan, who has high and complex needs including cerebral palsy and autism spectrum disorder, and was in care between 2001 and 2014:

“I have interacted with many government departments and NGOs over the years ... It is almost impossible to get consistent support and funding in place that is focused on outcomes for Keegan … Families like ours carry a large amount of the practical and emotional burden of caring for a disabled person, and so we should have input into government policies ... It is hugely important that whanau have a say on things like funding options.”[298]

581. Māori and Croatian survivor Tupua Urlich (Ngāti Kahungunu), who was placed into foster care in 2000 when he was aged 5, talked about the resources that communities have to offer:

“The knowledge exists and the supports are out there. So rather than reinvent the world, it’s about connecting with iwi. They are experts of their own.”[299]

582. Mr OB, a Pākehā survivor who has been in youth justice and inpatient mental health care, also believes communities have the potential to be more involved in addressing disadvantage:

“I still have gang members ringing me up saying that they are struggling and wanting help. They don’t go to the Government, no way. They come see another gang member. But what can I do other than simply listen?”[300]

583. Rangatahi from Te Rōpū Kaitiaki mō ngā Teina e Haere Ake Nei told the Inquiry that:

“Care and institutions don’t mix together as a concept. Good Lives Model which is guiding the Disability Strategy reflects on the move from institutions to community alternatives. Disability sector is more advanced in their thinking than the care sector.[301]

More about allowing iwi and community to do the healing. Governments have given us all the evidence they are not worthy of our trust and they have too much power.”[302]

Ngā waiaro me ngā mātauranga ā-iwi mo ngā mahi tūkino
Societal attitudes and understanding abuse and neglect

584. Scottish and Papua New Guinean survivor Jamie Henderson told the Inquiry about the racism he faced at Korowai Manaaki youth justice residence in Tāmaki Makaurau Auckland:

“Some staff would also say racist things to me. They would say “oi you black cunt” or “oi black shit” or any word to do with black.”[303]

585. Samoan survivor Mr GU, who was in the Weymouth residence in Tāmaki Makaurau Auckland in 2003-2004 as a teenager, was also subjected to racism while in care:

“I remember that staff members would sometimes make jokes about Samoans, and that other staff members did not even know I was Samoan and would assume I was Māori.”[304]

586. Survivors’ behaviour as children was often viewed as deliberate naughtiness. Mr GU ran away from the Weymouth youth justice facility in Tāmaki Makaurau Auckland he had been placed in because of sexual abuse:

“At Weymouth I was sexually assaulted by a male staff member … I tried running away from Weymouth because I felt unsafe there and was sick of the abuse. I got punished with placement in Secure for trying to hide at night time, and for trying to run away.”[305]

587. Tupua Urlich also encountered this negative view of young people:

“One of the youth justice workers said to me: “Oh are you youth justice?’ I replied “No, I’m care and protection.” He replied, “Oh future justice then.” I will never forget that comment, it really stuck with me...Children in care are viewed as less than other children and young people.”[306]

588. The Inquiry heard that some survivors did not understand that what was happening to them was abuse and neglect at the time. Māori survivor Ms QA (Ngāti Awa, Ngāpuhi), told the Inquiry that in youth justice care in the mid-2000s:

“…I experienced physical abuse and neglect. At the time, I did not identify that I was not having my needs met or that I was experiencing abuse. I felt like I deserved to be in the system and that I deserved everything that happened to me.”[307]

589. Reflecting on his experiences, Scottish and Papua New Guinean Jamie Hendersen believes that:

“Children need to have education much earlier about inappropriate touching and what abuse is to help them identify that it is wrong. They also need to be taught who to talk to, what to say, and how to respond when abuse happens to them.”[308]

590. When survivors did disclose abuse, it sometimes was not believed. This was the case for Pākehā and Māori survivor Mr RG (Ngāti Tuwharetoa) who was sexually abused by a teacher while at McKenzie Residential School in Ōtautahi Christchurch in 2005-2006:

“I talked to mum…about some of the things that were happening to me but I could not bring myself to disclose the sexual abuse to her while I was there. She didn’t believe me about the things I did disclose and said that she thought that I was seeking attention.”[309]

591. Ms QA told the Inquiry that adults need to know more about the signs of abuse and neglect as well:

“I think Oranga Tamariki need to have better systems in place to identify patterns of abuse and at risk children. The State got it wrong in calling my mother’s violence discipline. I was being neglected and abused.”[310]

592. Survivors’ issues and experiences are echoed in independent and State commissioned reports on care settings after 1999, which are discussed in Chapter 2.

He whakaāhei i ngā whānau ki te āta aukati i ngā mahi kaitiaki i waho i te whānau
Communities are empowered to minimise the need for out of whānau care

593. In Part 7 the Inquiry found that the circumstances that made it more likely someone would enter care during the Inquiry period also increased the likelihood that the person would experience abuse and neglect in care. These circumstances included discriminatory attitudes against Māori, Pacific Peoples, young people, disabled people and people experiencing mental distress, homophobia and sexism, persistent disadvantage, a lack of awareness of how to how to detect and respond to abuse and neglect, and a lack of community involvement in the design and delivery of care.

He takinga take hāpori me te mātauranga e tahuri kē ai ngā waiaro ā-iwi me te whakapiki māramatanga ki ngā pātukinga o ngā mahi tūkino
Social and education campaigns to change societal attitudes and increase understanding and impacts of abuse and neglect

594. Throughout the Inquiry period, society shaped attitudes about the treatment of people in care and the institutional cultures of care settings.

595. With the introduction of the New Zealand Bill of Rights Act 1990 and Human Rights Act 1993, as well as various international and national campaigns and social movements and reports condemning attitudes toward people in care, the end of the Inquiry period saw the beginnings of social change and a growth in acceptance. After 1999 this understanding and acceptance has continued to grow but many in the care system still experience discrimination based on wider societal attitudes. For example, Pākehā transgender survivor Ms NT, who was in inpatient mental health care in the mid-2000s, told the Inquiry that:

“…transgender people face stigma, exclusion and marginalisation. I have...been treated very badly by the medical practitioners in the past refusing to even use my chosen name or gender pronouns in their reports, and when speaking to me.”[311]

596. At the Inquiry’s State Institutional Response Hearing the Chief Executive for Oranga Tamariki, Chappie Te Kani, agreed that structural racism plays a part in the disproportionate numbers of Māori and Pacific Peoples in care.[312]

597. Concerns raised by the United Nations in 2022 about human rights issues included concerns “about the negative perceptions and the devaluing of persons with disabilities that were expressed during the passage of the end of Life Choice Act 2019.”[313]

598. The following year, the United Nations Committee on the Rights of the Child noted that “the Committee remains seriously concerned about the persistent rates of abuse and neglect of, and violence against, children… noting the higher risk faced by Maori, Pasifika and lesbian, gay, bisexual, transgender and intersex children, and children with disabilities”.[314]

599. The government needs to invest in a nationwide programme to counter the stigma and discrimination that sits at the heart of many people’s experiences in care. The Inquiry envisages this programme would be developed and delivered by the Care Safe Agency (Recommendation 41), in accordance with implementation recommendations 126–127.

600. The media has an important part to play in the programme. Part 2 discusses the role of the media in reinforcing negative stereotypes against Māori and Pacific Peoples as well as people living in poverty, young people, disabled people and people experiencing mental distress. Media has a powerful impact on collective views of society, encouraging audiences to develop a sense of who ‘we’ are by contrasting with ‘others’ — people and groups depicted as ‘not us’ due to their beliefs, practices, or attributes. Stuff media’s Our Truth, Tā Mātou Pono campaign from 2020 is an example of the role media can take in dispelling harmful stereotypes and making clear what its part in maintaining them has been.

601. The programme should include practical ways to share ideas and information, research and evaluation, and include a national media campaign, community conversations and other actions to bring about social change. In the Inquiry’s view, a campaign would be best delivered via a connected brand or organisation that can act as a front door or hub for sharing information and campaign messaging. It should also target key agencies and organisations, such as schools, NZ Police and care providers, including education and professional development providers for these sectors. This will ensure that the care workforce is specifically engaged.

Tūtohi 111 | Recommendation 111

The government should invest in a nationwide social and educational campaign to address attitudes and beliefs that contribute to harmful and discriminatory experiences in care and promote positive understanding and awareness of the diversity of experiences in Aotearoa New Zealand. This campaign should focus on addressing:

a) negative attitudes towards children and young people
b) attitudes reflective of discrimination on the basis of race, gender and sexuality
c) attitudes reflective of eugenics, ableism and disablism.

602. Over time, there has been developing awareness of abuse and neglect and the factors that help prevent it occurring. However, there is an ongoing need for general education and awareness raising about abuse and neglect, what it can look like and how to respond when it is happening to yourself or someone around you, and how to recognise and respond to grooming and other inappropriate behaviour. This should emphasise that everybody has a role to play in preventing abuse and neglect in care and provide information about what to do if you are concerned that someone is being abused or neglected or is at risk of perpetrating abuse.

603. NZ European survivor Ms VQ, who was placed in foster care in 2006 when she was aged 7, illustrated the lack of awareness about the reality of abuse and neglect in care when she told the Inquiry about going to court in 2015 to testify about the abuse she experienced:

“I knew the jury could see the evidence, but I also think this kind of thing [abuse in care] is just too hard for people to swallow. You get a jury and they are strangers. For any of them, this kind of thing would have been completely mind-blowing.”[315]

604. In addition, there is also a need for more targeted education for people in care or people who are accessing early support to prevent placement into care about understanding your rights and how to access advocacy and support. As above, the Inquiry envisages this programme would be developed and delivered by the Care Safe Agency (Recommendation 41), in accordance with implementation Recommendations 126–127.

Tūtohi 112 | Recommendation 112

The government should invest further in nationwide social and educational campaigns to:

a) challenge myths and stereotypes about abusers, bystanders and survivors of abuse and neglect in care
b) help victims and survivors of abuse and/or neglect, and their whānau and support networks, to minimise shame and self-stigma, and recognise the abuse and/or neglect was not their fault and to safely disclose and report as soon as possible
c) help people understand what constitutes abuse and neglect
d) help people recognise the signs of abuse and neglect
e) help people recognise grooming and other inappropriate behaviour
f) help people understand how to respond appropriately to abuse and neglect, including complaints, reports and disclosures.

605. The abuse and neglect in care settings were in almost every community in Aotearoa New Zealand in the Inquiry period. A few settings such as Lake Alice, Dilworth School and Epuni Boys’ Home have become household names. However, the true scale and extent of survivors’ experiences in these and many other settings has been invisible and unheard until now.

606. Despite many changes to Aotearoa New Zealand society and the care system since 1999, abuse and neglect is continuing to occur.

607. The reality that survivors experienced challenges some of the most deeply held parts of our national identity – that Aotearoa New Zealand is a place of equality and opportunity. However, that was not the reality for survivors.

608. The impact on survivors, their whānau, kainga, family and support networks can be seen in our health, welfare and justice systems and is a contributor to some of the most intractable social issues we have struggled as a country to resolve. New Zealanders must understand and accept that reality so that it is not tolerated in the future.

609. In the face of all of this, survivors have been steadfast in their determination to tell their stories, many of them in the hope that by doing so we can stop the cycle of abuse in our institutions and end the intergenerational suffering it causes. It is now on the State and faith-based entities to amplify their message and begin the work.

Tūtohi 113 | Recommendation 113

The government and faith-based entities should disseminate and publicise the findings and recommendations of this Inquiry in the widest and most transparent manner possible.

Whakaāhei te whai wāhi tōtika ki ngā tikanga whakatau kaupapa
Enable participation in effective decision-making processes

610. During the Inquiry period, children, young people and adults were removed from their families and communities and placed into institutional or compulsory care by people exercising the coercive legislative powers of the State. In Part 3, the Inquiry found that the people making decisions about care in the State care system included social workers, NZ Police, judges, health professionals and needs assessors. These decision-makers generally had limited involvement in, connection with, or understanding of the most affected communities, including Māori, Pacific Peoples, Deaf, disabled people and people who experience mental distress.

611. The Inquiry also found that the State often used its formal powers in a discriminatory way, such as using formal legal orders more often against Māori, rather than supporting in-home, whānau, hapū, iwi or community care. Decision-making was often influenced by ableist and disablist attitudes, which led to the segregation and social exclusion of disabled people by placing them in institutional care. The State often failed to assess, or inadequately assessed, children, young people and adults in care for trauma and support needs when deciding on care options.

612. The State almost always failed to consider or recognise an ao Māori (Māori world) view, tikanga, te reo and mātauranga Māori when removing or placing tamariki, rangatahi and pakeke Māori in all care settings. Deaf and disabled people were often denied or restricted from involvement in decisions about their own lives.

613. During the Inquiry period, the State learned that families, whānau and communities needed to have much greater, direct roles in care, and that people in care have a right to participate in decisions that affect them. From the 1980s onwards, the State made some legislative changes to bring families and communities closer to care, such as introducing Family Group Conferences in social welfare settings.

614. The State continues to hold significant legislative power to intervene and make compulsory decisions about people’s lives, including removal and placement in out-of-whānau care, for example, the power to remove children and young people from their families, and the power to treat and/or detain people who are experiencing mental distress without their consent. Legislation relevant to the care settings within the Inquiry’s scope that includes these kinds of powers includes:

a. the Oranga Tamariki Act 1989
b. Mental Health (Compulsory Assessment and Treatment) Act 1992
c. Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

615. Proposals for making significant changes to the exercise of State power have been provided to or worked through by, the government. Examples of this are set out below.

616. Article 12 of the United Nations Convention on the Rights of Persons with Disabilities provides that disabled people should be provided with support to make decisions.[316] In 2023, Cabinet agreed to changes to mental health legislation to improve its alignment with Aotearoa New Zealand’s domestic and international human rights obligations. The changes included:

a. additional rights and obligations for tāngata whaiora to be supported to make decisions and express their views, including any communication assistance required. This would include the provision of appropriate accommodations for people with physical, sensory, learning and other impairments.[317]
b. membership of the Mental Health Review Tribunal to include the following members:

i. an appropriately qualified health practitioner
ii. a Māori member appropriately knowledgeable in tikanga and mātauranga Māori
iii. a tangata whaiora who has lived experience of being subject to compulsory mental health assessment and treatment
iv. a lawyer.[318]

c. that district inspectors can rely on advice from Māori experts to assist them in upholding the rights of tāngata whaiora Māori. This will support consideration of Māori needs in complaints resolution processes.[319]

617. These changes have not yet been passed into law.

618. In 2019, a review of family justice reforms recommended that the government should work “with iwi and other Māori, the Court and relevant professionals, to develop, resource and implement a strategic framework to improve family justice services for Māori.”[320] In particular, the report recommended that the government should provide for “a Mana voice to ensure the Family Court has access to mana whenua and Māori community knowledge” to strengthen family justice services.[321]

619. In 2022, Dame Naida Glavish and Rāhui Papa, on behalf of the Iwi Chairs Forum, proposed a shared decision-making model for care and protection proceedings called Te Pae Kōti-ā-Whānau (Family Court Panels). The proposal was for “a three-person panel consisting of a legally trained convenor and representatives from iwi and the community, delivering therapeutic justice based on tikanga Māori, available to and serving people of all ethnicities.”[322] This proposal has not been progressed by government. It has similarities to the changes agreed by Cabinet in 2023 to the composition of Mental Health Review Tribunals under the Mental Health (Compulsory Assessment and Treatment) Act 1992, which add a member with knowledge of tikanga and mātauranga Māori to the tribunal.

620. At the Inquiry’s State Institutional Response Hearing, Chappie Te Kani, Chief Executive of Oranga Tamariki, told the Inquiry that the focus of the agency’s nine strategic partnership agreements with iwi and Māori is on “preventing entry into State care through joint decision-making and a focus on whānau care”.[323] He also stated that the Future Direction Action Plan, which aims to prevent children from coming into the care of Oranga Tamariki, commits to “place the voices of tamariki and rangatahi at the centre of decision-making at all levels and support [them] to participate in and be central to decision-making”.[324]

621. Bringing people and their whānau closer to decisions that affect them is in line with best practice and international human rights instruments, including the United Nations Convention on the Rights of People with Disabilities and the United Nations Declaration on the Rights of Indigenous Peoples. Bringing the diverse perspectives and knowledge of communities into decision-making using the State’s legislative powers will improve the quality of the decisions. This includes by mitigating against decisions influenced by discriminatory attitudes or lack of cultural competency, which the Inquiry found was a contributing factor to abuse and neglect in care during the Inquiry period.

622. In its Vision for the future, he Māra Tipu, the Inquiry pictures that very few children, young people and adults will need out-of-whānau care because they will have the supports they need to flourish and stay with whānau. The Inquiry recognises that, in the immediate and medium term, there will still be situations where it is both necessary and appropriate for the State to exercise its coercive legislative powers to intervene in the lives of children, young people and adults.

623. The Inquiry recommends the government accelerate and prioritise current policy and legislative work to bring people closer to the decisions that affect them, including through supported decision-making, and to bring the strength of communities into decisions that use the State’s coercive powers. The Inquiry also recommends that the government review relevant legislation, operational practice and guidance to identify new opportunities for improvement in these areas.

Tūtohi 114 | Recommendation 114

The government should:

a) accelerate and prioritise current policy and legislative work to enable children, young people and adults in care and their whānau to more effectively participate in decisions that affect them, and to bring the strength of communities into decision-making
b) review legislation, policy, investments, operational practice and guidelines related to the care of children, young people, and adults in care to identify opportunities to enable children, young people and adults in care and their whānau to more effectively participate in decisions that affect them, and to bring the strength of communities into decision-making.

Te aro tonu ki ngā pēhitanga me te kore tautoko
Addressing persistent disadvantage and lack of support

624. In Part 7 the Inquiry found that the circumstances that made it more likely that people were placed in care also increased the likelihood that the person would experience abuse and neglect in care. People were more likely to be placed in State or faith-based care if there was a lack of early support in the home and if they had experienced poverty, family crisis or violence, disability (including experiencing mental distress), or parental abuse and neglect. Many families and communities continue to experience persistent disadvantage today:

“697,000 New Zealanders experience persistent disadvantage, with sole parents and Pacific peoples experiencing the highest rates, followed by Māori and people with disabilities. An estimated 172,000 people experienced complex and multiple forms of persistent disadvantage in both 2013 and 2018.”[325]

625. Persistent disadvantage can stem from various underlying factors, such as prolonged unemployment, significant disabilities, past or present homelessness, discrimination, institutional racism and trauma. These issues often span multiple generations, leading to stressful and unstable lives. Having spent time in care is now recognised as also being a factor behind persistent disadvantage.[326]

626. Since 1999, there has been an increasing understanding that early intervention and investment to support whānau and communities experiencing persistent disadvantage is needed. Major reviews and inquiries into this include the Welfare Expert Advisory Group (WEAG), the Tax Working Group, the Expert Advisory Group on Solutions to Child Poverty and the Productivity Commission’s inquiry into More Effective Social Services. The Productivity Commission found that:

“Failing to provide effective and early support, especially in early childhood, can have long-term and intergenerational impacts.”[327]

627. In 2018, the Office of the Prime Minister’s Chief Science Advisor reported that:

“Early, positive engagement can stop intergenerational cycles of trauma, offending and prison involvement. The effects of abuse, neglect and maltreatment on children’s development and behaviour can be successfully addressed at home, at school, in the community and in targeted mental health and other services, for a fraction of the cost of imprisonment.”[328]

628. The social investment approach also recognises the importance of early intervention. The Social Wellbeing Agency defines social investment as:

a. understanding people’s needs using data and evidence
b. setting clear, measurable goals and focusing on what works
c. improving services by systematically measuring and comparing their effectiveness and feeding this information back to decision-making
d. enabling local providers to deliver services tailored to the needs of their communities.[329]

629. The social investment approach focuses on proactive and preventative measures at the point in people’s lives where it will make the most difference. Early investment in addressing persistent disadvantage will address some of the circumstances that contributed to children, young people and adults entering care and experiencing abuse and neglect during the Inquiry period.

630. There are already many examples of good and promising contemporary practice in existing programmes and initiatives that seek to address persistent disadvantage. Many of these are delivered in partnership between government and community organisations including hapū and iwi. Examples include:

a. Ngā Tini Whetū, a programme implemented by Te Puni Kōkiri, Oranga Tamariki, the Accident Compensation Corporation and the Whānau Ora Commissioning Agency, which aims to support whānau and improve the safety and wellbeing of tamariki, “averting a care, protection or youth justice intervention from Oranga Tamariki”.[330] It was developed as a specific approach to address the overrepresentation of Māori in State care, using devolved, whānau-centred approaches and the unique partnership approach of the delivering agencies and organisations.
b. Whānau Ora is an approach derived from te ao Māori that is Māori led, whānau-centred and holistic and has a devolved commissioning model. The intent of the commissioning approach is that investment decisions are made as close as possible to local communities, maximising the effectiveness of interventions at the local level and ensuring that new opportunities for investment are identified based on data and evidence.
c. the Enabling Good Lives Principles and Programme, a facilitation-based support model built around individuals’ needs and aspirations, rather than around groups of people. Enabling Good Lives includes:

i. self-directed planning and facilitation
ii. cross-government individualised/portable funding
iii. strengthening families/whanau
iv. community building.

631. The Enabling Good Lives general purpose is described as being to:

"incrementally transition existing services to a facilitation-based support model. The focus of facilitation-based support would be on enabling disabled people to do everyday things in everyday places in communities, rather than on provision of ‘special’ places or activities for disabled people. It would include support funding from across government agencies that would be individualised and flexible".[331]

632. These and other programmes will provide valuable lessons and examples of successful practice that the State and communities can draw on in implementing Recommendation 115.

Anga atu ana ki te whakamana hāpori
Towards community empowerment

633. During the Inquiry period, the system did not prioritise or place the needs of children, young people, and adults in care at the centre. People in care and their whānau, hapū, iwi, communities and cultures were frequently disregarded and disrespected. The Inquiry repeatedly saw the system being focussed on its own processes and meeting bureaucratic requirements, rather than the needs, experiences and outcomes of children, young people, and adults in care.

634. State and faith-based institutions also maintained power, resources and control, while people in care and their whānau and communities were excluded from decision-making. The disempowerment of affected people, whānau and communities in the design, implementation, and control of care systems led to decisions, practices and behaviours that, for many, were discriminatory and harmful.

635. In 2023 the Productivity Commission noted that:

“For people experiencing persistent disadvantage, there’s a fundamental mismatch between what is required to help them improve their lives and how government departments operate ... The government should introduce a deliberate strategy of using a people-centred, devolved approach to address persistent advantage. The twin aims of devolution are to support people to make changes in their lives that will enable them to convert their material resources into what they regard as a good life and to ensure that people have the level of resources they need.”[332]

636. The practice of shifting decision-making power and resources from the State to communities is often called devolution. Devolution is not a new concept. Recently there has been increasing recognition and evidence in support of devolution to more effectively tackle complex social issues.[333]

“Devolution is more effective. Small-scale, nimble organisations that take time to build trust can help people feel safe, revealing the true extent of their needs. They are better placed to identify the changes that individuals and their families want to make to their lives. Through a process of co-production, organisations and people experiencing persistent disadvantage can work together to design and deliver the personalised assistance they need.”[334]

Te tuku mana ki te waihanga me te whakahaere ratonga ā-iwi
Devolving design and delivery of social services

637. Since the 1980s there have been considerable efforts by the State to move towards more community and whānau-led approaches to services. The way the State has sought to make this shift has been criticised, as rather than innovating, governments have largely responded by focusing departments on:

a. increasing cash benefits and transfers (Working for Families) and in-kind services like counselling and housing, targeted by way of often overlapping eligibility thresholds, with little, if any, regard for people’s overall needs
b. seeking to improve coordination across departments at the top, using ministerial groups, executive committees and cross-departmental agencies
c. writing detailed contracts for outputs with NGO providers as a way of imposing accountability.[335]

638. While disability support services in Aotearoa New Zealand showed a rise in alternative care options like Choice in Community Services, individualised funding, carer support, and Enabling Good Lives in 2019/20, the Health and Disability System Review report in 2020 noted that access to disability support services through the Needs Assessment and Service Coordination System was:

“… complex and confusing…there is wide unexplained variability in the way assessment processes work around the country, and this should be addressed…Assessment and reassessment processes should be streamlined so that those who require more service coordination support receive this in a timely manner, the need for regular reassessment is reduced, and people gain more freedom to manage their own support.”[336]

639. Some government and public organisations have signalled intentions to shift towards truly devolved models and approaches. For example, Oranga Tamariki has plans to increasingly devolve services to communities.[337]

640. The Inquiry notes that it is critical that devolution involves not only shifting the responsibility of service delivery, but also the decision-making power to design, fund and implement social services to communities. As Te Rūnanga o Tūranganui a Kiwa, Te Rūnanganui o Ngāti Porou and Manaaki Tairāwhiti set out in their case for devolution of services in te Tairāwhiti:

“We ask for the allocation and authorisation of the necessary power and decision-making to iwi in Te Tairāwhiti, so that whānau and the local community can engineer their own solutions to social issues. Devolution means not handing over current services but the power to design the necessary solutions as we see fit.”[338]

Te whakapiki i te āhei me te tāea o te kawe kaupapa
Building capability and capacity

641. In devolving power to communities, the government will need to ensure there is investment in and provision for building the capability and capacity in communities to lead devolved approaches so that they can flourish. The Centre for Social Impact indicates that:

“Research has consistently shown that the capability and capacity of boards and committees in the community sector is variable…while there are many innovative practices in community sector governance, especially in Māori organisations and iwi boards, some community organisations and NGOs are not well governed.”[339]

642. Both communities and government have important roles to play in a devolved model. Communities have resources such as volunteer hours, relationships, skills and local knowledge.[340] Government can provide technical support such as coaching and mentoring, evaluation and learning support.[341] In addition, necessary safeguarding functions such as national standards, regulation, and data collection may need to remain centralised.[342]

“The skill mix of the people working in devolved organisations is likely to vary. Some specialised capabilities will be required, such as clinical support for addressing addictions. For others, empathy, lack of judgment and the ability to connect deeply with individuals and their families and the wider community will be paramount.”[343]

Te whakarahi ake i te aro tautoko ā-whānau
Expanding whānau-centred approaches to support

643. Related to devolution are whānau-centred approaches. Whānau Ora is an example of a whānau-centred approach, which is a “culturally grounded, holistic approach focused on improving the wellbeing of whānau as a group, as well as the individuals within the whānau”.[344] This enables services to meet the needs of the whole whānau as an interconnected family system, rather than focusing on a single individual.

644. In recent years, some public organisations (including government departments) have begun to signal a willingness to take whānau-centred approaches to the design and delivery of services with the goal of improving outcomes for Māori and Pacific Peoples.[345] In 2023, the Office of the Auditor-General recommended that the Treasury and Te Kawa Mataaho Public Service Commission provide proactive guidance about existing joint working and funding arrangements that would support the use of whānau-centred approaches.[346]

Tūtohi 115 | Recommendation 115

The government should prioritise and invest in work to support contemporary approaches to the delivery of care and support, including devolution, social investment and whānau-centered and community-led approaches, such as Enabling Good Lives and Whānau Ora, and avoid the State-led models that contributed to historical abuse and neglect in care.

Te anga atu ki te kaupapa, He Māra Tipu, hei te toko i ngā manako o te iwi ma te kohinga kōrero
Moving towards He Māra Tipu through investing in people’s needs using data and evidence

645. In Chapter 3, the Inquiry set out its vision for the future – He Māra Tipu. In this future, by 2040 the State will have transferred power, funding and control of care supports and services to collectives and/or local communities. This would facilitate evidence-based design and investment to deliver supports and services that meet the needs of local communities. In he Māra Tipu all individuals and whānau would have everything they need to flourish and as a result few, if any, children, young people or adults would need out-of-whānau care. Whānau, hapū and iwi could exercise tino rangatiratanga over their kāinga and are empowered to care for their tamariki, rangatahi, pakeke Māori and whānau according to their tikanga and mātauranga.

646. The Inquiry acknowledged in Chapter 3 that devolving power, funding and control from the State into local hands will take time. It will require several stepping stones along the pathway to get there. It will also require good data analysis and evidence of what is working, what is not working and what opportunities there could be to direct investment at the local level to trial new and innovative practices and supports.

Ngā aro whakaaro o Kaikōmihana Erueti rāua ko Gibson mo te whakatū tira taki kaupapa motuhake
Commissioners Erueti and Gibson’s views on establishing an independent commissioning agency

647. Commissioners Erueti and Gibson consider that, in addition to Recommendation 115, a new independent Commissioning Agency, as described in the vision set out in Chapter 3, should be established as soon as possible to create an immediate shift towards devolution of social services investment decisions away from the State. In Commissioner Erueti and Gibson’s view, it is imperative that this shift begins now, to put power into local hands as soon as possible. Commissioners Erueti and Gibson recognise that it will take time, so planning for this change and the establishment of the independent Commissioning Agency should begin immediately.

648. The independent Commissioning Agency would allocate funding to collectives and/or local communities. Using their allocated funding, collectives and/or local communities would procure supports and services tailored to meet the needs of the individuals and whānau in their communities, based on data and evidence. They would also invest in community capacity and capability building to design and deliver supports and services. Collectives and/or local communities could procure supports and services from many kinds of care providers, such as individuals, rōpū, Pacific communities, disability communities, NGOs, faith-based entities, organisations, hapū, marae, etc. Care providers could have previously been involved in delivering care services, or could be newly involved in the care system.

649. Collectives and/or local communities would define themselves and group together according to shared values, goals, experiences, needs, location, interests, ancestry, whakapapa, ethnicity, religion and/or culture. Collectives and/or local communities could include, for example, iwi or groups of iwi, regional groups, or nationwide collectives representing a specific community of interest, such as the Deaf community. The detail of how many collectives and/or local communities there would be, how many people and whānau they would procure services and supports for, and how the Commissioning Agency would identify their investment allocation, should be worked through jointly with Māori in accordance with te Tiriti o Waitangi, as well as co-designed with communities in line with implementation Recommendations 126–127.

650. The Commissioning Agency should start immediately with responsibility for allocating funding to collectives and/or local communities for the design and delivery of the following supports and services:

a. care and protection and youth justice supports and services (currently commissioned by Oranga Tamariki)
b. community mental health services and supports (currently commissioned by the Ministry of Health via Health New Zealand Te Whatu Ora)
c. disability supports and services, including Enabling Good Lives (currently commissioned by Whaikaha)
d. Whānau Ora preventative supports and services (currently commissioned by Te Puni Kokiri via Whānau Ora commissioning entities).

651. Responsibility for care and protection, youth justice, community mental health, disability and preventative (Whānau Ora) supports and services would be transferred from the government agencies that are currently responsible to the Commissioning Agency. Legislation to establish the independent Commissioning Agency should provide for any statutory powers or functions needed to support its role. The Inquiry envisages this would include the transition of any existing contracting arrangements between Oranga Tamariki, Whaikaha, Te Puni Kōkiri and current care providers.

652. The government should ensure that the total amount of investment into care and protection, youth justice, community mental health, disability and preventative supports and services is sufficient and sustainable. This would ensure that all individuals and whānau nationwide receive the services and supports they need to address the circumstances that made individuals more likely to be placed in out of whānau care, and experience abuse and neglect.

653. The Commissioning Agency should be a single Independent Crown Entity at arm’s length from government. Leadership and governance arrangements for the Commissioning Agency will reflect appropriate diversity and lived experience, in accordance with implementation Recommendation 129.

654. The care providers that collectives and/or local communities procure supports and services from would be subject to the new national care safety regulatory system, just like other care providers. The Care Safe Agency (Recommendation 41) would be responsible for ensuring that they comply with the same rules, standards and guidelines as all other care providers, including accreditation, vetting, and registration of staff and care workers.

Tūtohi 116 | Recommendation 116

Commissioners Erueti and Gibson consider the government should:

a) develop, plan for and establish an independent entity, as soon as possible, responsible for:

i. commissioning care and protection, youth justice, community mental health, disability and preventative services and supports from self-identified local (or in some cases, national) community groups and organisations (including hapū, iwi, urban Māori authorities, NGOs, Pacific, disability, mental distress communities, faith-based entities and other collectives) across Aotearoa New Zealand
ii. monitoring and evaluation of the delivery of care and protection, youth justice, community mental health, disability and preventative services and supports by local community groups and organisations to ensure that they are meeting the needs of individuals and whānau in their communities
iii. investing in local community groups and organisations to build their capacity and capability to design and deliver these supports and services to meet the needs of their communities
iv. reporting to government, Parliament and the public on the delivery of care and protection, youth justice, community mental health, disability and preventative services and supports by local community groups and organisations to ensure that they are meeting the needs of individuals and whānau in their communities

b) provide sufficient and sustainable investment to the Commissioning Agency to enable it to commission care and protection, youth justice, community mental health, disability and preventative supports and services that will meet the needs of individuals and whānau nationwide
c) transfer responsibility and investment for commissioning the following services and supports to the Commissioning Agency:

i. care and protection supports and services, from Oranga Tamariki
ii. youth justice supports and services, from Oranga Tamariki
iii. community mental health supports and services, from the Ministry of Health/Health New Zealand Te Whatu Ora
iv. disability supports and services, from Whaikaha
v. preventative supports and services, from Te Puni Kōkiri/Whānau Ora commissioning entities.

Te whakamana i te Tiriti o Waitangi me ngā mōtika tāngata
Giving effect to te Tiriti o Waitangi and human rights

Te whakatoka i te Tiriti o Waitangi hei kaupapa here, waihanga me te whakatinana kaupapa e hāngai ana ki ngā mahi i ngā pūnaha taurima
Embed te Tiriti o Waitangi in the policy, design and implementation of care functions

655. In February 1840 the rangatira who signed te Tiriti o Waitangi did not cede their sovereignty. That is, they did not cede their authority to make and enforce law over their people or their territories. Rather, they agreed to share power and authority with the Governor. They agreed to a relationship: one in which rangatira and the Crown were to be equal while having different roles and different spheres of influence. In essence, Rangatira retained their authority over their hapū and territories, while Hobson was given authority to control Pākehā.

656. The Inquiry found little evidence of measures to provide for te Tiriti o Waitangi in the design and implementation of Crown policy and legislation relating to the care system during the Inquiry period. Tamariki, rangatahi and pakeke Māori were more vulnerable to abuse and neglect as a consequence of long standing and ongoing deprivations and intergenerational harm caused by colonisation. This included the loss of land, language, tikanga, and economic and political power which broke down the traditional structures in Māori society that acted as strong protective factors for individuals and whānau, hapū and iwi. In the context of the care system this resulted in:

a. whānau, hapū and iwi being excluded from decision-making regarding their mokopuna and uri
b. tamariki, rangatahi and pakeke Māori being removed or placed into care
c. a lack of support for Māori designed and delivered care services and supports, thereby stifling Māori exercise of tino rangatiratanga
d. a care system that was Pākehā-centric and structurally racist, contributing to the abuse and neglect of Māori survivors.

657. Successive governments have taken some measures to provide for te Tiriti o Waitangi in policy and law since the 1970s. Legislative references to the principles of te Tiriti o Waitangi (often called “Treaty clauses”) emerged in the Treaty of Waitangi Act 1975, the State-Owned Enterprises Act 1986 and environmental laws.[347]

658. The New Zealand Health and Disability Act 2000 (repealed and replaced by the Pae Ora (Healthy Futures) Act 2022 included the following provision:

“In order to recognise and respect the principles of the Treaty of Waitangi, and with a view to improving health outcomes for Māori, Part 3 provides for mechanisms to enable Māori to contribute to decision-making on, and to participate in the delivery of, health and disability services.”[348]

659. In 2019, the Oranga Tamariki Act 1989 was amended to require the Chief Executive to provide a practical commitment to the principles of te Tiriti o Waitangi.[349] The Education and Training Act 2020 includes provisions “that recognise and respect the Crown’s responsibility to give effect to Te Tiriti o Waitangi”.[350] The Pae Ora (Healthy Futures) Act 2022 provides for “the Crown’s intention to give effect to the principles of te Tiriti o Waitangi” through a range of measures.[351]

660. Giving effect to te Tiriti o Waitangi will not only ensure that the implementation of these recommendations is tika and pono, it will also lay the foundation for the realisation of the Inquiry’s vision, a care system where the rights of Māori under te Tiriti o Waitangi are upheld. Ultimately, the vision of this Inquiry includes the State handing over power and resources for the delivery of care to whānau that are supported by hapū, iwi, and Māori and community organisations at the local and regional level, with any wrap-around support and care for tamariki, rangatahi and pakeke that require outside of home care and support. Any such care and support would be delivered in accordance with the relevant tikanga and mātauranga.

Tūtohi 117 | Recommendation 117

The government should partner with hapū, iwi and Māori to give effect to te Tiriti o Waitangi and the United Nations Declaration on the Rights of Indigenous Peoples in relation to the development of strategy, policy, design, implementation and direct or indirect delivery of care functions, including where it has passed on its authority or care functions to any faith-based institution, or to any other individual, entity, or service provider (whether by delegation, contract, licence, or in any other way).

Te pupuri ki ngā here tika ā-tangata o te ao mo te hunga kei ngā pūnaha taurima
Upholding international human rights obligations for people in care

661. The Inquiry found that during the Inquiry period the human rights of people in care were insufficiently protected.

662. In the Inquiry’s view, a significantly greater focus on human rights in care is required. Part of this involves understanding how Aotearoa New Zealand’s international human rights obligations are relevant to care, including that those receiving care are rights-holders. It also involves recognising that these rights and obligations should form part of the core framework within which care occurs and ensuring that they are implemented in care.

663. The rights of children, young people and adults in care and the corresponding obligations under the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, the Convention on the Elimination of All Forms of Racial Discrimination, the United Nations Declaration on the Rights of Indigenous Peoples, and the Convention on the Elimination of All Forms of Discrimination against Women should underpin the provision of care.

664. While Aotearoa New Zealand is renowned internationally for strong protection of the rights of Indigenous Peoples, particularly through law and policy, “New Zealand is comparatively less advanced in relation to many other states in respecting and recognising indigenous authority over indigenous places and spaces”.[352] The advancements of indigenous self-determination and self-governance in child welfare matters internationally provide models for fundamental change in Aotearoa New Zealand to give effect to te Tiriti o Waitangi.

665. The importance of the United Nations Declaration on the Rights of Indigenous Peoples has been emphasised through the Waitangi Tribunal. The Tribunal has said the Declaration contains principles that are “consistent with the duties and principles inherent in the Treaty”.[353] Both the courts and the Tribunal have acknowledged the Declaration is relevant to interpreting the principles of te Tiriti o Waitangi.[354]

666. Part of realising these rights includes addressing any barriers that may impact on people’s ability to communicate their needs and participate fully in decisions that affect them. For Deaf, disabled people and people experiencing mental distress, communication assistance could include augmentative and alternative communication devices, alternate formats, and supported decision-making. Māori, Pacific Peoples and others from linguistically or culturally diverse backgrounds may face additional barriers. Communication assistance could include, for example, te Reo Māori sign language interpreters, and support people with appropriate cultural and language competency.

Tūtohi 118 | Recommendation 118

All entities providing care directly or indirectly on behalf of the State or faith-based entities should:

a) uphold the rights of Māori in care as indigenous peoples of Aotearoa New Zealand in accordance with United Nations Declaration on the Rights of Indigenous Peoples
b) uphold the rights of Māori, Pacific Peoples, and people from other linguistically or culturally diverse backgrounds in care, in accordance with the Convention on the Elimination of All Forms of Racial Discrimination
c) uphold the rights of girls and women in care, in accordance with the Convention on the Elimination of All Forms of Discrimination against Women
d) uphold the rights of Deaf, disabled people and people who experience mental distress in care, in accordance with the Convention on the Rights of Persons with Disabilities and the Enabling Good Lives principles, including:

i. recognition that Deaf, disabled people, and people who experience mental distress, in care have:

- the same rights as others in care to make decisions that affect their lives, including adults having decision-making supports as appropriate
- the right to communication assistance in making and participating in decisions that affect them, communicating their will and preferences, and developing their decision-making ability
- the right to access and use advocacy services in making and participating in decisions and communicating their will and preferences

ii. recognition that tāngata Turi, tāngata whaikaha and tāngata whaiora Māori and Pacific Peoples who are Deaf, disabled or experience mental distress may experience barriers to accessing supports and services due to cultural, language and other differences, and that these barriers need to be addressed.

e) uphold the rights of the child in care, including:

i. acting with the best interests of the child as a primary consideration, consistent with the United Nations Convention on the Rights of the Child
ii. recognising the right of whānau, hapū, iwi and Māori to retain shared responsibility for the wellbeing of tamariki and rangatahi Māori, consistent with the United Nations Declaration on the Rights of Indigenous Peoples.

Te aromatawai i te raupapa tika tāngata haukāinga e mau tūturu tonu ai te tiaki pai i te hunga kei ngā pūnaha taurima
Review domestic human rights framework to ensure it adequately protects people in care

667. During the Inquiry period, there was no specific framework aimed at ensuring that human rights in all care settings were respected, protected and fulfilled. There was no systematic, regular monitoring of care against human rights standards during the Inquiry period.

668. As set out in Part 1, human rights protections in Aotearoa New Zealand’s domestic laws are “piecemeal”. They are set out in a variety of statutes and the common (court-made) law, which means they cannot all be found in one place. The Inquiry considers that in order to realise and protect the human rights of all New Zealanders in care, more needs to be done immediately.

669. The Inquiry considers that the rights of Māori to be free from abuse and neglect in care and the relevant rights in the United Nations Declaration on the Rights of Indigenous Peoples should be provided for in law. The Human Rights Act 1993 should be reviewed to identify whether any amendments are needed to address abuse and neglect in care.

Te tika o te noho haumaru a te tangata
Right to security of the person

670. In its concluding observations in Part 7, the Inquiry referred to there not being a general right to security of the person in the New Zealand Bill of Rights Act 1990.

671. The International Covenant on Civil and Political Rights, which Aotearoa New Zealand has ratified, states at Article 9(1) that everyone has the right to security of the person. This right is concerned with “freedom from injury to the body and the mind, or bodily and mental integrity”.[355] The right “protects individuals against intentional infliction of bodily or mental injury, regardless of whether the victim is detained or non-detained”.[356]

672. This right is profoundly important for individuals and society more generally.[357] It is particularly relevant to abuse and neglect in care. However, because there is no general right to security of the person in the New Zealand Bill of Rights Act 1990,[358] people in care in Aotearoa New Zealand cannot directly rely on this right in the courts. In contrast, overseas there are many cases brought to the courts which are based on this right.[359]

673. There is a right in the New Zealand Bill of Rights Act not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment. But Aotearoa New Zealand courts have found that this right only applies in “truly egregious” or “outrageous” cases.[360] Less serious cases may in some instances be covered by the right of arrested or detained people to be treated with humanity and with respect for the inherent dignity of the person, as set out in section 23(5) of the Act. However, that right only applies to people deprived of liberty. As set out above, the international human right to security of the person applies to everyone, whether or not they are in detention. Abuse and neglect in care occurs inside and outside of detention.

674. There is therefore an important gap in the New Zealand Bill of Rights Act which needs to be filled. That could be done by adding a general right to security of the person in Part 2 of the Act, following the heading “Life and security of the person”.

He take tūturu e mau tonu ai te Kāwanatanga i ngā tika ā-tangata me te Tiriti o Waitangi
The State has positive duties in relation to human rights and te Tiriti o Waitangi

675. The State has positive duties under each human rights instrument, and under te Tiriti o Waitangi. This means it has an obligation to take action to ensure rights are respected and upheld.

676. In relation to te Tiriti o Waitangi, the Inquiry noted in Part 6 that the Crown obligations as a Tiriti o Waitangi partner and signatory to te Tiriti o Waitangi that include:

a. ensuring the Crown and institutions recognise Māori rights and values
b. ensuring the Crown and institutions act in accordance with te Tiriti o Waitangi obligations of the Crown
c. monitoring the activities of institutions, and auditing institutions’ performance in the context of te Tiriti o Waitangi relationship between Crown and Māori.

677. Te Tiriti o Waitangi is relevant to interpreting legislation even where legislation is silent on te Tiriti o Waitangi. Given that tamariki, rangatahi and pakeke Māori are taonga, te Tiriti o Waitangi colours all legislation dealing with the status, future and control of tamariki, rangatahi and pakeke Māori.

678. In Part 1 the Inquiry discussed some of the positive duties the State has to people in care under relevant human rights instruments. Aotearoa New Zealand must respect, protect and fulfil human rights. In practice, this means the State has a duty to:

a. respect human rights by not interfering with them
b. protect human rights by preventing private institutions or other people from violating them
c. fulfil human rights by taking positive steps to ensure they are realised, including enacting laws and implementing appropriate policies and programmes.

679. The State has a duty to ensure that victims of human rights breaches can receive effective redress, which can be individual or collective, depending on the nature of the right breached. It must also be responsive to the fact that human rights protections must evolve over time as societal understanding grows, increasing the obligations on Aotearoa New Zealand. Human rights knowledge should influence care practices, ensuring that care relationships are positively affected. Any failure to meet this standard should be identified and corrected.

Te whakatinana i ngā tika o te hunga whaikaha kei ngā pūnaha taurima
Realising the human rights of disabled people in care

680. Aotearoa New Zealand took a lead role in negotiating the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and ratified it in 2008. The government’s position is that the Convention is given effect, and the rights of disabled people provided for, through:

“ … New Zealand’s general human rights law, the New Zealand Bill of Rights Act 1990, in its specialised non-discrimination law, the Human Rights Act 1993, and in specific recognition in legislation governing health, education and other social services. Before ratifying the Convention, New Zealand reviewed its law for consistency with the Convention and made necessary amendments.”[361]

681. Since ratification, the State has focused on implementing the Convention through non-legislative mechanisms such the New Zealand Disability Strategy and Disability Action Plan, implementing the Enabling Good Lives approach and establishing Whaikaha Ministry of Disabled People.[362]

682. The Inquiry notes that the Australian Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability’s central recommendation was to create a Disability Rights Act, complementing their current Disability Discrimination Act, which has associated standards with positive duties.[363] The Inquiry thinks that increasing the visibility of the human rights of Deaf, disabled people, and people who experience mental distress, in care through standalone legislation would strengthen protection of these rights and will be an important step in removing a persistent factor that contributed to abuse and neglect of Deaf, disabled people and people experiencing mental distress in care.

683. The Inquiry envisages that the design of this new law change (before draft legislation is introduced into Parliament) will be undertaken in accordance with implementation Recommendations 128–129. This would include identifying whether any changes are required to other laws that are relevant to realising the human rights of Deaf, disabled people, and people who experience mental distress. These laws include the Adoption Act 1955, the Protection of Personal and Property Rights Act 1988, the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

Tūtohi 119 | Recommendation 119

The government should review Aotearoa New Zealand’s human rights framework to ensure it adequately addresses abuse and neglect in care, including:

a) introducing a stand-alone right to security of the person in the New Zealand Bill of Rights Act 1990
b) ensuring statutory protection in a Disability Rights Act of the rights of disabled people to be free from abuse and neglect in care and the relevant rights in the Convention on the Rights of Persons with Disabilities
c) providing statutory protection of the rights of Māori to be free from abuse and neglect in care and the relevant rights in the United Nations Declaration on the Rights of Indigenous Peoples
d) making any necessary amendment to the Human Rights Act 1993 to address abuse and neglect in care
e) the provision of effective implementation of the relevant rights, including positive duties.

Te whakatū tohu tika hei taki kaupapa atawhai tangata
Establishing human rights indicators for care settings

684. In the Inquiry’s view the government should, in order to prevent ongoing abuse and neglect in care:

a. establish performance indicators to measure human rights performance in care settings
b. assist in identifying gaps and other issues
c. promote human-rights consistent decision-making and conduct in care, and
d. increase the visibility of human rights in care.

685. Indicators are used to assess and monitor human rights realisation in care.[364] Indicators could include, for example, the number of complaints reported to care providers during an annual reporting period alleging breach of the right to security of the person and the number of those complaints which were resolved within a year of being made. Further indicators could include the number of those complaints which were upheld and the number of complainants with upheld complaints who received effective redress.

686. Indicators should be chosen with reference to Aotearoa New Zealand’s domestic and international human rights obligations, including those under the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, the Convention on the Elimination of All Forms of Racial Discrimination, the United Nations Declaration on the Rights of Indigenous Peoples, and the Convention on the Elimination of All Forms of Discrimination against Women.

687. The process of choosing indicators involves considering which human rights are relevant to care, how those human rights apply in practice to care settings, and the information required in Aotearoa New Zealand to measure over time whether applicable human rights obligations are being met or not. The advantages of carrying out this work include that it will require government, other entities providing care directly or indirectly involved in care, survivors and other interested groups to analyse and make transparent decisions on how broad human rights standards apply to care in this country, and to revise those decisions periodically. It will also result in the establishment of an Aotearoa New Zealand-specific human rights framework for care, which the Inquiry found was lacking during the Inquiry period.

688. The guidance from the Office of the United Nations High Commissioner for Human Rights[365] provides some direction and Te Kāhui Tika Tangata Human Rights Commission’s indicators for the right to adequate housing in Aotearoa New Zealand, including the process it followed to choose relevant indicators, provides a useful example of how this work could be done.[366]

Tūtohi 120 | Recommendation 120

The government should establish performance indicators for all entities providing care directly or indirectly on behalf of the State or faith-based entities based on Aotearoa New Zealand’s domestic and international obligations.

He aronga tūturu ki ngā kaupapa ārai mahi tūkino
Targeted abuse and neglect prevention programmes

Te tautoko i te hunga kei ngā pūnaha taurima e mārama e tāea ai e rātou te pārai ngā mahi tūkino
People in care supported to understand abuse and neglect and protect themselves

689. In Part 7, the Inquiry identified that critical protective factors for people in care include understanding their rights and how they should be treated, and understanding appropriate and inappropriate behaviour, personal safety, and what they can do in difficult situations. The Inquiry has found that peer-on-peer abuse is more likely in care settings that have a pervasive culture of physical and sexual violence. People in care learn to be abusive and violent in these environments and can become a victim and perpetrator of abuse.

690. However, many survivors told the Inquiry that they did not understand that what was happening to them was abuse and they were often never taught what abuse was or how to recognise it, including recognising signs of grooming and inappropriate behaviour. In addition, survivors often did not know where to get help and what to do if something does not feel right.

691. Targeted programmes are required to ensure that children, young people and adults in care understand what abuse and neglect is, what acceptable and respectful behaviours and relationships look like and what to do if they have concerns. There should also be programmes for parents and caregivers to increase knowledge of abuse and neglect and its impacts and build skills to help reduce the risks of abuse and neglect. This is in addition to the general social and educational campaigns directed at the broader public in Recommendations 111 and 128.

Tūtohi 121 | Recommendation 121

The government should support and adequately invest in:

a) programmes for children, young people and adults who are in care or are at risk of being placed in care that are delivered through community organisations, and preschool, primary, and secondary schools including kura kaupapa, private, charter and State integrated schools, that aim to increase knowledge about abuse and neglect and build their skills and tools to help them to protect themselves (both in person and online safety), including a focus on:

i. recognising grooming and other inappropriate behaviour
ii. understanding what constitutes abuse and neglect
iii. recognising the signs of abuse and neglect
iv. understanding their rights and how they should be treated
v. understanding respectful and appropriate behaviour and relationships
vi. what to do and where to get help if you have concerns.

b) programmes to help support parents, whānau and caregivers delivered through day care, preschool, school, sport and recreational settings, and other institutional and community settings to increase knowledge of abuse and neglect and its impacts and build skills to help reduce the risks of abuse and neglect.

Te whakapiki tahua tautoko hei ārai i ngā mahi tūkino
Increasing investment to support abuse prevention programmes

692. The Inquiry heard from some survivors who were abused by others of a similar age, or those placed in the same setting, in what is known as ‘peer-on-peer’ abuse. This occurred across all settings that the Inquiry investigated. During the Inquiry period, there was often a culture of physical or sexual violence in care settings where staff condoned or even encouraging peer-on-peer abuse between residents.

693. The Education Review Office released a special review report on Wesley College (in Pukekohe) in June 2023. Concerns for the safety of students at Wesley College and its hostel were raised by the Education Review Office and the Ministry of Education which led to the review. The report stated:

“Although on the decline, there is evidence that entrenched practices and harmful traditions continue to persist that place students at risk of violence, bullying and discrimination.”[367]

694. Oranga Tamariki has reported that 84 percent of the harm experienced in residences in 2023 was caused by other children, with 11 percent caused by staff.[368] The Inquiry also heard reports of peer-to-peer abuse in disability settings:

“Staff told me “off the record” that Paul’s injuries were the result of him being regularly assaulted by other residents. They told me that Paul had been pinched and punched by other residents.”[369]

695. Part 5 explained that the Inquiry heard from a range of survivors who had abused and assaulted their peers in care due to abuse they had previously experienced, the culture of the care setting or due to previous adverse experiences such as abuse and violence in their home. It is critical that children, young people and adults in care who have abused others or are at risk of abusing others have access to appropriate specialist support, including from mental health professionals.

Tūtohi 122 | Recommendation 122

The government should support and adequately invest in:

a) abuse and neglect prevention programmes, including for those who may be at risk of perpetrating abuse and neglect
b) access to specialist support, including rehabilitation programmes, for children, young people and adults who exhibit harmful or abusive behaviours or are at risk of abusing others, including concerning or harmful sexual behaviours
c) online information and a helpline to provide support for those concerned about:

i. an adult they know may be at risk of perpetrating abuse and/or neglect
ii. a child, young person or adult in care they know may be at risk of abuse and/or neglect
iii. a child, young person or adult in care they know may be displaying potential abusive behaviours.