Aaron Smale unravels the legal liability the Crown is now ensnared in after the Royal Commission into State Abuse's finding of torture at Lake Alice - how solitary confinement elsewhere is now in the gun, and the political implications.
She flinched, ever so slightly. There was a hint of hesitation in her response to the question being put to her, not because she didn’t know the answer but perhaps because she did. As a King’s Counsel and the government’s top lawyer she knew the implications of saying that answer out loud, under oath, in front of a Royal Commission. Solicitor General Una Jagose was not answering on her own behalf but as the legal representative of the Crown itself.
The answer she gave could now land the Crown in deep legal, financial and political jeopardy. It could also leave a number of high level political figures exposed to criminal liability.
Jagose was giving evidence in a hearing on Lake Alice psychiatric hospital, specifically the adolescent unit that was operated there by Dr Selwyn Leeks during the 1970s. The unit has a well-earned notoriety. It has been the subject of allegations for 50 years of horrendous abuse committed against children, including punishment with electric shocks, rape and violence. But again and again there was a failure on multiple levels to properly investigate or hold anyone accountable, despite obligations under international law.
In cross-examination one of the Royal Commission lawyers Andrew Molloy asked Jagose directly whether the Crown accepted that the abuse described by victims – particularly the use of electric shocks as punishment – met the criteria for torture as defined by the UN’s Convention Against Torture which New Zealand signed onto in 1986.
Molloy: “Does the Crown accept that what occurred at Lake Alice was torture or cruel, inhuman and degrading treatment?”
Jagose: “Well, I am going to have to give quite a long answer to your question I'm afraid.”
Jagose explained that the matter is under investigation by police and could end up before the courts, so her answer would have to take care not to jeopardise that process. After explaining her caution, Jagose then unpacked the UN’s definition as it applied to Lake Alice.
“Torture has three elements. ‘Infliction of pain and suffering, mental, physical’ - no doubt that has been met. ‘By an arm of the State or a person acting on a part of the State’ - also no question that has been met.
“The key question is the purpose for which that pain and suffering was inflicted. The allegations are that it was done for a punishment.”
Jagose says if a fact-finding entity like the Royal Commission or a court found that pain and suffering was inflicted as punishment, “then that is three elements met - torture.”
“… As alleged, that conduct meets the three criteria for torture.”
In an earlier hearing on redress Jagose also gave evidence and acknowledged, without any prompting, that the Crown had always known that what Dr Leeks was doing was not acceptable medical treatment. The Crown had known this because the evidence was in the documentary record: “The government of the day could see readily that the record showed that the psychiatrist, Dr Leeks, was using treatment methods to punish and attempt to modify behaviour in a way that the Crown then, and still, thought was unacceptable, an unacceptable way to treat those children, and didn't put any of them to proof over that because the proof was right there in the file, in the very systems that the hospital and Dr Leeks ran.”
While much of this sounded obvious to any person who had taken even a cursory look at the Lake Alice case, the Crown had never acknowledged it so explicitly because to do so would open it up to legal and financial liability. Time and again over decades the documents show politicians, bureaucrats and lawyers were more concerned about legal exposure than what had happened to victims. The victims were an afterthought. The only time they were front-of-mind is when they were to be defeated by the Crown’s team of lawyers.
As the Crown’s top lawyer in charge of Crown Law, Jagose’s job was always to protect the Crown’s interests. She had worked diligently to look after her client, the Crown. That meant hosing down any threat of liability, even if that liability concerned the abuse and torture of children.
She and her predecessors were also ultimately responsible for the prosecution of crimes. Yet Crown Law had withheld evidence of the state’s crimes from the police investigations into Lake Alice right up to 2020. The record shows that a succession of solicitors general – and their political masters – consistently put second the rights to justice of more than 300 children who were tortured by state employees.
But the Royal Commission’s simple question caught the Crown in a checkmate. Jagose’s answer could now implicate the Crown's entities in not just torture but the covering up of torture.
In the Lake Alice report the Royal Commission used that short exchange against the Crown, stating:
“We agree with the Solicitor-General’s conclusions about the severe pain and suffering survivors experienced and Dr Leeks’ status as a public official. We have already concluded the evidence is compelling that electric shocks were sometimes administered at Lake Alice as punishment, outside the bounds of any proper therapeutic approach. It follows that in the view of the inquiry those acts meet the definition of torture as outlined by the Solicitor-General.”
In one paragraph the commission exposed the Crown’s decades-long effort not to accept responsibility, dismantling the obfuscation, from over nearly 30 years to name what happened at Lake Alice what it always was – torture. After spending decades and millions of dollars of taxpayer money, the Crown has now been found out, and could need to face-up to consequences of state torture.
Human rights lawyer and KC Tony Ellis says the finding is a massive hit on New Zealand’s reputation.
“It's a stunning finding and quite unique in our jurisdiction. We bring cases and make allegations – there's torture. And the Crown go out of their way to say 'no, there isn't'. Because they don't want to have to report to the UN Human Rights Committee or torture committee that during the last three years or five years, there were x complaints of torture. Nobody wants that on the international radar.
“The Royal Commission very cleverly turned the Solicitor General's word into their finding. That's very clever. And it's a landmark to say that this is an act of torture. But the significance of what to do with it needs to be further explored.”
The victims have always known in their bones that what happened to them was torture and have regularly described it that way. But to finally have the Crown’s representative acknowledge this fact in such a forum as a Royal Commission moves it into a different legal space with ramifications for this and future governments.
Those ramifications obviously centre on Lake Alice but go well beyond that one institution and case.
The Crown had always known and always discussed internally the risk of Lake Alice opening a Pandora’s box of legal and fiscal risk. Most of the children who went to Lake Alice had gone through other state institutions before they arrived and many would go on to others after they left. Most also raised allegations of abuse in those other institutions run by the Department of Social Welfare.
In the first instance, Jagose’s admission meant the commission’s report on Lake Alice repeatedly uses the word torture – it appears 574 times in the document. This is often in place of what in previous documents would have been referred to as ECT, which inherently implied a medical procedure. The Royal Commission explicitly rejected any ambiguity by using the word torture instead, reducing the use of the ECT machine to the term “electric shocks”.
“In the almost eight years the unit operated, Dr Leeks and the staff at Lake Alice inflicted, or oversaw, serious abuse – some amounting to torture – in what quickly became a culture of mistreatment, physical violence, sexual and emotional abuse, neglect, threats, degradation and other forms of humiliation,” the report states.
“Dr Leeks wielded almost unbridled power over the nurses and staff at Lake Alice some of whom, in turn, misused their power against the children and young people in their care. There was a culture of impunity that enabled and normalised acts of abuse and torture. Sexual, physical, cultural and emotional abuse was widespread and unchecked in the unit.
“The torture survivors experienced included electric shocks, often without anaesthetic, applied not just to the temples but to the limbs, torso and genitals. They were given excruciatingly painful and immobilising injections of paraldehyde, administered by staff as punishment or as an improper form of aversion therapy, not for legitimate medical reasons.”
Over 400-plus pages the Royal Commission’s report details this torture from the testimony of victims and the documentary record. But the report also documents the extraordinary lack of action on complaints that started in January 1973, less than six months after the unit opened, when a complaint reached the head of Social Welfare.
The lack of action was only surpassed by action of a different kind – the denial and minimisation of what had happened. Those carrying out this denial had access to the evidence but withheld it from those who were responsible for investigating. Those responsible for investigating – the police and a line-up of bureaucratic entities – were lethargic at best, in dereliction of their duties at worst.
The Royal Commission’s report identifies too many examples of this behaviour to itemise here. But there was a consistent pattern of various individuals in high places and institutions failing to carry out any thorough fact-finding inquiry. To do so would have established clear evidence of crimes.
There were police complaints in the 1970s but the police never spoke to victims and took the word of staff, who were the alleged perpetrators. The Medical Council also received a complaint in the 1970s but never carried out a thorough investigation – if it had, it would have been obliged to refer the matter to police because the abuse could not be justified as medical treatment.
There were further complaints to both the police and the Medical Council in the late 1990s and 2000s, but again these institutions failed to make any serious effort to establish the facts. The police didn’t even speak to victims who had complained of sexual abuse and rape. The police eventually apologised at the Royal Commission for a number of failures, including losing a number of files.
The Royal Commission’s report on Lake Alice discusses these failures but also reveals others that were not simply passive incompetence and negligence.
ACC had medical reports from experts, as did the police, that said Dr Leeks' behaviour was well outside the definition of medical treatment. An unsolicited report was written by Justice Gallen during the civil litigation in the early 2000s that confirmed the allegations of sexual abuse and torture, but the Crown tried to undermine and suppress this. Another example was the Children’s Commission and Health and Disability Commission, either undermined by information being withheld or compromised by conflicts of interest.
After publicity about the Lake Alice case, which included sexual abuse, Children’s Commissioner Roger McClay wrote to Minister of Health Annette King in October 2001 asking for officials to check the whereabouts of former Lake Alice staff to ensure none were still working with children.
King replied that such an inquiry by the Ministry of Health would not be warranted or appropriate, saying it would be “unjust and inappropriate to act in any way that assumed the guilt of former staff.”
However, by the time King wrote those words Gallen’s report was already in circulation in government circles and he had flatly stated that victims' allegations of being sexually abused, including rape, were true. King had access to this report.
McClay was told by Crown officials information obtained by the Crown was for the purposes of litigation and “the Government is not free to release the information” and that it was “very hard to work out what went on at Lake Alice.”
This simply wasn’t true. Government officials as early as 1998 knew the allegations were likely to be true because they had reviewed files that corroborated them. This was acknowledged by officials who gave evidence at the Royal Commission.
The statements from King are inexplicable when the Crown held documents that corroborated the allegations of victims. This included a document that showed officials at the highest levels during the 1970s had been aware of children being put in adult wards where they were being raped. What was “unjust” wasn’t any assumption that former staff were guilty of crimes against children, but not properly investigating whether they were.
The Royal Commission provided documents to the Office of the Children’s Commissioner to find out what it had been told and what it hadn’t. After reviewing the documents the Office of the Children’s Commissioner told the inquiry it considered “Crown officials had withheld important information from Mr McClay.”
If the Children’s Commissioner was misled, the Health and Disabilities Commissioner did not disclose his prior involvement in the case when victim Kevin Banks made a complaint in 2005. The Health and Disabilities Commissioner at the time was Ron Paterson. Paterson had replied to Banks that “although I am concerned about the serious issues raised by your complaint, I have decided not to take any specific action on your concerns. There have been previous inquiries into Lake Alice in response to concerns similar to those you have raised.”
Again, this was a circular argument. A number of the previous inquiries Paterson refers to never made any serious attempt to fully establish the facts. He referred to the report by Sir Rodney Gallen, but this report was unsolicited. Gallen was involved in allocating compensation, but he felt compelled to write the report to put on the record that the abuse at Lake Alice was “outrageous in the extreme” and that sexual abuse and rape of children had occurred. This was as close as it got to a thorough investigation because Sir Rodney was virtually the only government official who had actually spoken to victims and taken their words seriously.
Further complicating Paterson’s response to Kevin Banks was the fact Paterson had previously held a position as one of the Ministry of Health’s main advisors briefing ministers on the Lake Alice litigation.
One such briefing to Health Minister Bill English in October 1997 said the purpose of the paper was to “provide advice on how to minimise the legal and fiscal risks posed to the Crown arising out of the alleged mistreatment of patients at the [unit] by employees of the Department of Health and Palmerston North Hospital Board”.
So a person who saw their role as minimising the Crown’s legal risk relating to a clear-cut case of torture, then went on to hold another role where he told one of those victims of torture in the very same case that he wouldn’t be looking into his complaint. Paterson never declared his prior involvement.
Paterson held other roles including law professor at University of Auckland and was appointed Ombudsman in 2013. In a recent NZ Herald profile – that makes no mention of his involvement in the Lake Alice case despite his involvement being thoroughly documented in the Lake Alice report – he talks about his appointment by the Law Society to lead an inquiry into the regulation of lawyers in New Zealand.
“You’ve got to be a little bit cautious because the profession has its own interests. It’s easy for the voice of clients and the community not to be heard,” he said.
Kevin Banks has been voicing his complaints about what happened to him at Lake Alice since 1978. He filed complaints with both the Medical Council and the police soon after he got out of Lake Alice but nothing was done. That was the start of a paper trail that continues to this day where he has repeatedly tried to have Dr Leeks and his staff held accountable, but all to no avail.
He says the finding of torture is long overdue and the trauma of Lake Alice continues to haunt victims. He said it’s not only the individuals that went through Lake Alice that have been damaged but their families that have been affected as well.
“We have been waiting for justice for a very long time. It’s destroyed families. It’s destroyed my family. Kids with parents from Lake Alice have had to grow up really fast. New Zealand has been drawing this out and they don’t give a fuck about the people they’ve destroyed or their families. I sometimes wish I didn’t have a family because I didn’t want to put this on them. I’m very fortunate I’ve got a good wife, but she’s ropable.”
Banks says those who have covered up what happened at Lake Alice would have taken a different attitude if it had happened to their family.
“We know something would have been done a very long time ago if something like this had of happened to their kin.”
The Royal Commission’s report repeatedly gives examples of individuals in high positions and institutions with a mandate to establish the facts and act on what those facts revealed. Not only did they fail to do their jobs, but many actively buried the facts or didn’t bother to establish or act on them.
Finally, after survivors exhausted all their options, the advocacy group Citizens Commission on Human rights (which is affiliated to the Church of Scientology) filed a complaint to the UN on behalf of survivor Paul Zentveld. The UN had already warned New Zealand in 2011 and 2015 that it needed to carry out a proper inquiry, which was virtually ignored. Then in 2020 the UN found that New Zealand was in breach of the Convention against Torture for failing to properly investigate and establish the facts of what happened at Lake Alice.
As a result the police opened what was the fourth investigation and found that, yes, there was enough evidence to prosecute former staff, including Dr Selwyn Leeks, with criminal charges. But it was too late.
But even after the UN’s finding, Crown Law continued to obfuscate. Newsroom reported last year that the police had requested documents and evidence about Lake Alice from Crown Law, including medical reports and opinions. Leoni McInroe’s file, which Crown Law was in possession of, contained a medical report from Dr John Werry that was utterly damning, referring to what happened to her at Lake Alice as medical misadventure, not medical treatment. Crown Law did not give this to police.
In fact, Crown Law didn’t give any of McInroe’s file to the police or the Royal Commission and made no mention of her case when defending itself at the UN, despite her fighting the Crown for nine years. The police only became aware of her case when she came forward to the Royal Commission. McInroe’s file, and the evidence it contained, had also never been provided to police in the investigation in the 2000s.
McInroe was the first victim to take a full civil case against the Crown in the mid-1990s for what she suffered at Lake Alice. One of her lawyers, Rob Chambers, was the top expert on tort law and would have been a formidable opponent for the Crown if it got to court. But it never did. The Crown dragged out the proceedings for nine years – withholding evidence, putting McInroe through endless tests and even making her sit opposite Dr Leeks in a mediation meeting after secretly flying him back from Australia.
But despite ruthlessly defending McInroe’s claims over nearly a decade, behind the scenes the Crown’s lawyers knew her case was credible and the allegations she and others were making were true.
“We use the word torture loosely but in terms of the United Nations talking about torture, when the Solicitor General is on the stand acknowledging that, that just takes everything to another level,” says McInroe.
“Not only did they stand back, deny, dismiss, all those years when it was happening, but right up until recently they were still covering that. How disgusting. How low can you actually get. How corrupt can you get.
“It’s inconceivable that the Crown, the entities within the Crown, prime ministers, the lawyers, the representatives of law in New Zealand, can knowingly and deliberately and intentionally try and have that suppressed. For what? So we don’t look bad on the world stage. For what it might cost them financially? It’s disgusting. It’s hurtful.
“How long is it going to take? We all know it’s taken over 30, 40 years. We all know that, but how much longer do they need? Are they waiting for all of the children of Lake Alice to die? The entire story of the history of the children of Lake Alice, what happened, all of the events, all of the involvement of the Crown, the fact that it was torture, the fact that all of that is acknowledged, now there’s this deadly silence. The Crown, the bully Crown, suddenly goes quiet. Now they’re hiding.”
McInroe’s case was undercut by the Crown settling out of court with a class action group for what amounted to $6.5 million (this was for around 100 claimants – another group of a similar number came forward which brought the figure up to $12 million). Which was a cheap price tag for liability that the Crown had budgeted $132 million to cover.
Crown Law had done its job of minimising the Crown’s liability. But it had utterly failed to do its job of prosecuting those responsible for crimes against children, even though it had evidence of those crimes. The Royal Commission report documents how the police failed to do even the most basic investigation and police apologised to victims for a litany of those failures.
Una Jagose’s affirmative answer to the question of whether what happened at Lake Alice was torture has now exposed the Crown’s efforts to bury the facts. Which raises further questions – was that effort just morally dubious or possibly criminal? Whatever the answer, Lake Alice is not the only institution or occasion where state-sponsored torture is likely to have occurred.
Solitary Confinement
If the Royal Commission was thorough in establishing the facts on Lake Alice, it also parked certain questions, at least for now. In its description and assessment of various kinds of abuse, it raised the question about the use of solitary confinement.
“Children and young people were held in solitary confinement and deprived of their liberty, sometimes for days or weeks on end.”
“We will return to the topic of solitary confinement in the final report, including whether misuse of solitary confinement breaches human rights standards.”
One possible reason the Royal Commission has postponed its findings on solitary confinement until the final report is that the practice was not peculiar to Lake Alice. While electric shocks and paraldehyde were used as torture and were specific to Lake Alice, solitary confinement was routine in other institutions. Electric shocks in the way Dr Leeks was using them weren’t officially sanctioned. But solitary confinement was. Buildings were deliberately constructed by DSW with solitary confinement as the intent. In the case of Kohitere in Levin, the secure block was modeled on Arohata prison.
The evidence that solitary confinement was being used excessively and as a punishment on children is absolutely abundant.
What could become a huge problem for the Government is that the use of solitary confinement in other institutions was absolutely routine. The number of children that went through Lake Alice was around 300. The number of children that went through state welfare homes like Hokio, Kohitere, Epuni, Owairaka, Fareham House, Miramar Girls and other institutions was in the tens of thousands. One of the first things that happened to many children when they arrived was they did a stint in solitary confinement. If the Royal Commission finds that this qualified as torture, then the Crown has tortured tens of thousands of children in its custody.
Racial justice campaigner Oliver Sutherland was part of a group ACORD in the 1970s and 80s that relentlessly challenged the government on the abuse of children in state institutions, including Lake Alice. But before Sutherland discovered what was going on at Lake Alice, he had already found multiple examples of children in state custody being put in prolonged periods of solitary confinement throughout the country. This was not only happening in state welfare institutions on a regular basis. Children were also being put in solitary in adult prisons.
In his memoir of the period, Justice and Race, Sutherland mentioned a press release where “we pointed out that in our society, rules and procedures existed to ensure that no adult was deprived of their liberty without due process of law — but there was no such protection for children who were state wards. If parents treated children in their care as the Department of Social Welfare did, locking them into cells and beating them into submission, they would be prosecuted at once. The Social Welfare staff at Owairaka knew no such constraints. They were a disgrace to their profession.”
The “rules and procedures” Sutherland refers to were in place for adults but weren’t for children at the time. This has changed in subsequent years as New Zealand has signed on to international conventions to protect children, including the UN Convention on the Rights of the Child, but New Zealand's adherence to those conventions has been uneven at best. Many of those conventions prohibit or discourage the use of solitary confinement, equating it to torture.
In New Zealand’s case, what was happening in the period that Sutherland was exposing these practices was sanctioned if not admitted by the state. For example, there are departmental documents and press coverage about the building of the secure block at Kohitere, which was modeled on Arohata Prison.
Despite this, in 1978 Minister of Social Welfare Bert Walker asserted “there was no such thing in New Zealand as the solitary confinement of children in state institutions.” He was either lying or grossly unaware of what was happening on a regular basis in the ministry he was responsible for.
In conversation, most state abuse victims don’t even mention solitary confinement, not because they didn’t experience it but because it was so common and they don’t think to mention it. For many it was the first thing that happened to them when they arrived.
Newsroom has reviewed files that show children going through stints of solitary lasting months, not just weeks and days. One case was M who was a victim of childhood abuse and ended up as a ward of the state. He spent two years in Kohitere and during that time he spent 321 days in total in solitary confinement. The periods started off as days and weeks but escalated. The two longest stints were three months that was then quickly followed by a stint of nearly five months.
M also went through a military boot-camp programme when he was 14 and was subjected to being under live fire from guns and artillery and was tied to a chair and interrogated. Another one of the children in the military programme with him was Antonie Dixon, who was later convicted for an attack on two women with a samurai sword that resulted in one losing her hand.
Gwyneth Beard (Piwi) gave evidence at the Royal Commission and spoke of how the girls were regularly put in the secure block when they returned from leave or when they had run away. To get out of solitary they had to undergo internal examinations. One of the doctors was Dr Morgan Fahey, who was later convicted of sexual assault and rape of a number of his female patients. Beard realises now that what Fahey was doing was not a medical procedure but was sexual assault. She was 12 when it started and it led to her not going to a doctor as an adult for regular check-ups. She later suffered cervical cancer.
There are copious academic studies and anecdotal evidence going back to the 19th century that solitary confinement is destructive both psychologically and physically. These studies are based on adults and show physiological changes in the brain. The damage to a developing child’s brain is likely to be more severe.
Dr Craig Haney, an expert on solitary confinement at the University of California, found in a review of the literature that the practice is extremely damaging both physically and psychologically:
“The scientific consensus reflects the view that the adverse effects of solitary confinement can inflict real harm. The resulting damage is sometimes so severe that it is irreversible. Indeed, for some prisoners, the attempt to cope with isolated confinement sets in motion a series of long-lasting cognitive, emotional, and behavioral changes that can persist beyond the time that the prisoners are housed in isolation, leading to long-term disability and dysfunction. As the National Academy of Sciences committee put it, solitary confinement ‘can create or exacerbate serious psychological change in some inmates’ that is so negative and severe that it ‘make[s] it difficult for them to return to the general population of a prison or to the community outside prison.’”
The New Zealand Human Rights Commission contracted expert Sharon Shalev from Oxford University to carry out a study on New Zealand’s current use of solitary confinement in prisons, psychiatric and youth justice facilities. The resulting report was released in 2017 and this was followed by an update report.
Shalev said that international research showed that the use of solitary confinement created “a toxic mix which has been shown by studies dating back to the 19th century to adversely affect the health and wellbeing of those subjected to it. The reported psychological effects of solitary confinement range from acute to chronic and include anxiety, panic, chronic depression, rage, poor impulse control, cognitive disturbances including poor concentration and confused thought processes, perceptual distortions including depersonalisation and hallucinations, paranoia and psychosis.”
“Studies have demonstrated physiological symptoms and effects too, including migraine headaches, heart palpitations, back and other joint pains, gastro-intestinal and genito-urinary problems, excessive sweating, insomnia, deterioration of eyesight, lethargy, dizziness, weakness and profound fatigue, feeling cold, poor appetite, weight loss, diarrhoea, tremulousness and aggravation of pre-existing medical problems. Emerging research in the field of neuroscience demonstrates that solitary confinement disrupts brain activity, potentially leading to changes in the structure of the brain. Rates of self-harm and suicide, which are anyway higher in prison than they are in the general population, are even higher in solitary confinement units.”
“If solitary confinement can be damaging to those with no previous history of mental health issues, individuals with pre-existing mental illness are at a particularly high risk of worsening psychiatric problems as a result of their isolation. Children and young people are also particularly vulnerable to the damaging effects of solitary confinement, as they are still in the process of developing physically, mentally and socially, and solitary confinement effectively ‘freezes’ their development.”
When she turned to look at the use of solitary confinement in New Zealand in the present, she found that it was a common practice and there was a disproportionate number of Maori and children were subjected to it.
“Overall, the data revealed a high use of seclusion and restraint in New Zealand, and an overrepresentation of ethnic minority groups, in particular Māori, in seclusion and in prison segregation units,
“Children and young people in Care and Protection residences could be held in separation from their peers in ‘Secure Care’ units which were identical to prison segregation units. These were inappropriate.”
Juan E. Méndez (Argentina) was appointed by the UN Human Rights Council as the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in November 2010.
In a report in 2011 Méndez says that when solitary confinement is used “on juveniles or persons with mental disabilities, it can amount to cruel, inhuman or degrading treatment or punishment and even torture.
“States should abolish the use of solitary confinement for juveniles and persons with mental disabilities.”
He also found that solitary confinement was “contrary to one of the essential aims of the penitentiary system, which is to rehabilitate offenders and facilitate their reintegration into society.” This was because it caused “anger, ranging from irritability to full-blown rage; poor impulse control; outbursts of physical and verbal violence against others, self and objects; unprovoked anger, sometimes manifested as rage.”
Despite signing up to these international conventions, New Zealand continues to use solitary confinement on children. Prisons regularly subject inmates to solitary confinement. The impacts would be compounded by the fact that many inmates experienced it as children while in welfare.
This is a continuation of its use in the past. It wasn’t some anomaly like the use of electric shocks carried out by a rogue doctor. It was sanctioned by the state and was utterly routine. It was discussed and planned in departmental meetings. In some of the welfare institutions there was a specific building purpose-built by the Department of Social Welfare to lock up children in what were effectively prisons. Those who went through Kohitere talk about the pound, using prison terminology to retrospectively identify that what they went through as children was the same as what they went through in prison as adults; only, many of them consider the childhood version as worse.
Whakapakiri
The bricks and mortar institutions like Lake Alice and state welfare homes – and the abuse that they fostered – were largely all closed by 1990. The legal landscape was also rapidly changing around this time as New Zealand was signing up to international conventions and passing legislation to comply with those conventions. New Zealand ratified the UN’s Convention Against Torture in 1989. The Crime of Torture Act was passed in 1989 and New Zealand’s Bill of Rights Act Act was passed in 1990, which includes Article 8 that bans torture and cruel and inhumane treatment.
Despite these commitments by the state, New Zealand continued to inflict torture on children and then failed to properly investigate, while blaming the victims and throwing up legal obstacles when they complained.
The rhetoric around getting tough on crime, including youth crime, escalated in line with the neoliberal ideology that became entrenched from the late 1980s onwards. This belief in the righteousness of the market as the measure of everything meant any unintended consequences, like crime, had to be laid at the feet of the individual alone.
State interventions became sub-contracted out, with privately-run programmes sprouting up through the 1990s. One of those programmes was an army-style boot-camp programme for troubled youth that was run on Great Barrier Island, Whakapakiri, from the late 1980s through to 2004.
Children in state custody were sent to the island to participate in the programme. While there, many were subjected to severe physical and sexual violence and psychological abuse, including being forced at gunpoint to dig what they were told were their own graves. Many of its former residents would go on to become some of New Zealand's most notorious hardened criminals, including RSA triple killer William Bell.
Despite numerous complaints about the programme from the beginning, the state’s response was to either not investigate or to blame the children and to call their credibility into question because they were wards of the state. This was a continuation of the response to Lake Alice and was happening around the same time that civil litigation on Lake Alice was occurring. In civil litigation, MSD has also tried to argue that the state is not responsible for the abuse that occurred in these programmes because they were contracted out.
The torture of children at Lake Alice was state-sponsored. The torture of children by solitary confinement in welfare homes was state-sponsored. The torture of children at Whakapakiri and other programmes was state-sponsored. The ongoing use of solitary confinement in residential welfare institutions and psychiatric facilities is state-sponsored. And yet the state gets to decide what the punishment will be for these crimes against children. Over more than 50 years the state has repeatedly refused to take responsibility for torturing children.
The state’s use of violence against children and the lack of any accountability looks set to continue. Last year the Labour government passed a bill focused on oversight of Oranga Tamariki. The bill was released for submissions just before Christmas 2019 with a short deadline. Despite this, more than 300 submissions were made that were opposed to its proposals from a number of organisations and individuals with expertise in child protection.
The bill not only gutted the role of the Children’s Commissioner, it also ignored two recommendations from the Royal Commission – that “the Crown should create in legislation a right to be free from abuse in care, and a non-delegable duty to ensure all reasonably practicable steps are taken to protect this right, and direct liability for a failure to fulfil the duty.”
When Minister for Social Development Carmel Sepuloni was asked why these recommendations were not being included in the bill she had no idea what report was being referred to, let alone what the recommendations were. She hung up when she was repeatedly questioned on the Royal Commission’s recommendations.
Prime Minister Jacinda Ardern was also questioned on the recommendations to protect children in state custody from abuse and to make the government legally liable. She wouldn’t answer the question, only saying: “The system has waited a long time for proper oversight and we are committed to getting it right,” she said in an email, but she did not address the question of the two recommendations from the Royal Commission.
Although all other political parties including National opposed the oversight bill, National has starting ramping up rhetoric about punishing youth offenders. Christopher Luxon advocated military boot-camps where children could be “reprogrammed”, language Dr Leeks himself would have approved of.
The government changed the terms of reference for the Royal Commission in late 2021 without consultation. The most significant change was that the commission was no longer able to make findings on current policies or practices.
Those who failed to act or defended the Crown against allegations they knew to be true have continued to climb through the ranks. Their careers have not been hindered by their involvement, they’d been promoted. In Crown Law alone, the main players had gone on to higher-level roles after their handling of Lake Alice. Solicitor General at the time Sir Terence Arnold became a judge on the Supreme Court. Crown lawyer Ian Carter who handled Leoni McInroe’s litigation was recently made a District Court judge in Whanganui, just up the road from the Lake Alice site. Grant Liddell, who was involved in the civil litigation, was made head of the Serious Fraud Office.
Since the Crime of Torture Act was passed in 1989 there have been no prosecutions for torture in New Zealand, despite a number of examples of abuse of children by the state that clearly qualify. Part of the problem is that the legislation is aimed at government officials but prosecutions have to have the approval of the Attorney General, which creates an inherent conflict of interest. To prosecute a state employee raises the possibility of creating legal liability for the Crown. New Zealand also expressed reservations about article 14 of the Convention about providing compensation, and reserved the right to only provide compensation to victims of torture at the discretion of the Attorney General. This effectively gives the government control over how the crime of torture is handled by police, even though the legislation is aimed at Crown officials. This completely blurs the line of separation of powers.
The perpetrator – and the Crown is now officially a perpetrator of state-sponsored torture – gets to decide whether its own officials should be charged and punished. Other criminals do not get this unusual privilege. It also creates a legal and political riddle – how are the police to assess certain actions by Crown Law, like not providing evidence to the police? Who do they seek advice from on whether that was criminal – the Solicitor General? The Attorney General? They were in charge when some of these actions happened.
Which leads back to the statements by Solicitor General Una Jagose in front of the Royal Commission – the Crown’s legal representative admitted that what happened at Lake Alice was torture. She admitted that the Crown had always known, both at the time and now, that what happened at Lake Alice was never medical treatment because the evidence was in the files. What she didn’t say was that staff at Crown Law had more access to that evidence than anyone.
Jagose’s statements are an implicit admission that every Solicitor General and Attorney General for nearly 30 years has known that crimes, including torture, were committed against children in the custody of the state. They knew that because they had seen the evidence. Yet Crown Law never gave all of that evidence to the police as recently as 2020.
But they did tell government ministers – Health Ministers knew. Police Ministers knew. Prime Ministers knew. Cabinet knew.
Survivor Tyrone Marks says the Royal Commission’s report confirms that multiple people knew at all levels of the state, right to the top, about what happened at Lake Alice.
“I’ve read the report three or four times. It reiterates all that information pointing to who knew. The thing is, who didn’t know. The whole lot of them mentioned in there all knew. None of them can ever go back to, oh, yeah, we didn’t know. The report says who was involved in the whole thing. You’ve got the Medical Council, you’ve got ACC, you’ve got the Police, you’ve got Crown Law, DSW, Department of Education, you’ve got local hospital boards.
"The interesting thing to me is Crown Law wrote reports for the Crown. Everybody had it, everyone had all this information. But none of them did anything, as we already know. But there was always one top dog who was in control of it all. Who was that? It’s not mentioned in there, but who was pulling all the chains. It has to go back to the government at the highest level, the highest in the chain of command, which was the Prime Minister. Ultimately it’s the Prime Minister.”
Rangi Wickliffe says the Crown has tried to deny responsibility for decades, even though there were government records that recorded details of the torture and abuse, including children getting raped by adult patients. He referred to a document Newsroom provided to him last year that describes children being put in an adult villa where they were being raped by criminally insane adult patients. The document also shows that staff in the Ministry of Education knew, the head of mental health knew and the superintendent of Lake Alice knew that it was happening.
“I always knew that they knew. It was confirmed when you gave me that piece of paper. That really pissed me off. You fuckers. You knew that kids were going into Villa 8 and getting raped by adult patients. Then you minimise it by saying they succumbed to the homosexual advances of adult patients because they were naive. Nah, fucken hell, they bashed us up and raped us. Simple as that.”
Dozens of Lake Alice victims made complaints to the police in the 2000s but police failed to speak to any of the victims of sexual abuse in the investigation.
New Zealand ratified the UN’s Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment in 1986 and passed the Crime of Torture legislation in 1989. That legislation can’t be applied retrospectively to acts of torture that occurred before 1989, meaning Dr Leeks couldn’t be charged under that legislation. But despite the events at Lake Alice happening before 1989, the UN still found New Zealand in breach of the Convention Against for not fulfilling its obligations after 1989, ie. the New Zealand state failed to investigate the allegations once Lake Alice victims came forward in the 1990s.
Tony Ellis says there have been whole textbooks written on the question of what happens when different parts of the convention are breached before and after it came into effect, but basically it comes down to whether the victims were still affected by 1989. The UN’s finding that New Zealand had breached the convention was related to the Crown’s failure to investigate, which happened post-1989. The Royal Commission’s finding of torture further validates the UN’s finding.
Elizabeth Stanley, Victoria University criminologist and author of a book about state abuse in New Zealand, has researched human rights violations by states, including in South Africa and East Timor. She says the Royal Commission’s finding of torture regarding Lake Alice could make New Zealand’s appearances at the UN highly embarrassing.
“It was a really important finding and the right finding given what we know. I don’t know how far that news has traveled so the initial shaming exercise that might have happened through a lot of media didn’t happen. But now the UN committee will be all over it, but they were already pointing towards those things anyway. This will give it further impetus.”
“The big thing is, what does it mean, what does it mean for the scale of redress that must be secured, like with immediate effect. There hasn’t been any clear response from government, so that is a big issue. That question (of redress) will now become more difficult with this finding.”
She says if the Royal Commission makes a finding of torture in its final report about the use of solitary confinement it will create major exposure for the New Zealand government.
“It exposes a whole lot of institutions to questions of torture. That has major implications. Within the European court the use of solitary confinement has been found to be torture.”
If the findings by the Royal Commission come to the attention of other countries and human rights forums, then it could end up blunting any criticisms New Zealand makes of other countries, says Stanley.
“That’s the argument that’s always used by violating states is, look to your own crimes, we’re not as bad as you, or the way states deny their own violations by trying to identify others. It could be used as a tool to devalue New Zealand criticisms.”
Closer to home, does the Crime of Torture Act apply to the response of Crown officials to Lake Alice after 1989?
Tony Ellis says any such case would be unprecedented and it would raise all sorts of questions about how police and Crown Law handle such a possibility, given Crown Law’s involvement in the case.
“We don't have anybody in New Zealand who has been tortured and somebody is prosecuted under the Crimes of Torture Act, or even trying to prosecute them for being an accessory.”
“But who do you get to prosecute them?”
Criminal liability?
Those questions are no longer simply theoretical. In frustration at the lack of accountability a group of Lake Alice survivors – Leoni McInroe, Rangi Wickliffe, Tyrone Marks, Alf Ruru, and Hake Halo – have filed a criminal complaint to the police against a number of high level politicians, bureaucrats and members of the legal fraternity. They allege that the named individuals are guilty of conspiring to defeat the course of justice and acting as accessory after the fact to crimes including torture, rape, sexual assault and assault. Further detail and names were added to the complaint after the Royal Commission’s report on Lake Alice made a finding of torture and others have endorsed the complaint and/or filed their own, including Kevin Banks.
Newsroom approached both Jacinda Ardern’s and Chris Hipkins' offices, asking if police have notified them under the no-surprises policy of the details or names in the criminal complaint. Neither has responded.
During the Lake Alice litigation in the 2000s the deputy Solicitor General Nicola Crutchley told one of her colleagues that the Lake Alice case was “highly political”. The Royal Commission’s finding of torture has made it even more political, but there has been silence from all political parties about how any government they are part of will respond.
The police are now boxed in by their own previous failures to investigate Lake Alice, the mountain of evidence that has now finally come to light, the finding of torture by the Royal Commission, the obligations of international law and the words of the Solicitor General herself, not to mention the legal complications created by the need to consult with someone in Crown Law at some point about the criminal complaint.
Previous reporting has shown the police became increasingly frustrated when trying to obtain evidence from Crown Law during the investigation into Lake Alice – Crown Law charged the police more than $100,000 to provide that evidence – which has created friction between two institutions that are usually working on the same team. Will the police investigate the criminal complaint thoroughly and impartially regardless of the individuals named on the complaint? Or will they balk at moving forward because of the legal complexities and political implications, failing the victims yet again, not because of any lack of evidence but for political expediency?
After-all, the finding of torture by the Royal Commission could bring the Crime of Torture Act into play, which specifically refers to someone who: “is an accessory after the fact to an act of torture. This section applies to any person who is a public official or who is acting in an official capacity.”
Dr Selwyn Leeks and his staff got away with torturing and raping children. The Royal Commission’s finding of torture means that those within state institutions that covered for Leeks to protect the Crown’s coffers and reputation may now regret doing so.
