The Solicitor-General said it was torture and the Royal Commission agreed – but the Attorney-General can't make up his mind. After 50 years the Government still refuses to say that what happened at Lake Alice was torture.
The heads of Crown Law and the Ministry of Justice can’t work out between them whether the abuse of children at the Lake Alice psychiatric hospital was torture, and the head of the Justice Ministry got his facts completely wrong when he appeared in front of the UN.
The Lake Alice psychiatric hospital ran an adolescent unit in the 1970s that subjected children to electric shocks as punishment and other forms of abuse, including rape. But the Crown has repeatedly failed to hold anyone accountable over the past 50 years, leading to the UN twice finding that New Zealand was in breach of the Convention Against Torture (UNCAT) for failing to properly investigate the allegations.
The Royal Commission of Inquiry into Abuse in Care carried out a specific inquiry into Lake Alice and made a finding of torture in its report, which was released in December 2022. The finding was partly based on the Solicitor-General, Una Jagose, agreeing before the commission on behalf of the Crown that what had happened at Lake Alice met the UN’s definition of torture.
READ MORE: * Lake Alice report finally documents the truth * First torture, now solitary - NZ’s shame
Despite Jagose’s statements under oath in front of the Royal Commission, when Attorney-General David Parker was asked by Newsroom if he accepted the commission's finding of torture, he declined to say. He said the "issues relating to the treatment of children at Lake Alice are being considered by the Royal Commission on Abuse in Care". However, the commission's report has already been delivered to the Government.
Parker said: "The Royal Commission’s final report is due to be presented to the Government in March next year, after which the Crown’s response to matters raised will be provided. It would be premature of me as Attorney-General to offer views on this matter before then."
Parker pointed to a statement made by Ministry of Justice secretary Andrew Kibblewhite in front of the UN Committee against Torture hearing during its periodic review of New Zealand a few weeks ago, where he referred to Lake Alice. However, Kibblewhite got his facts entirely wrong. Referring to the UN’s finding he said: “Given the finding that Mr Zentveld and Mr Richards had experienced torture, it was likely other children at the Lake Alice hospital will have experienced torture."
Contrary to Kibblewhite’s statement, the UN can’t make any finding of torture. The complaints to the UN by Lake Alice victims Paul Zentveld and Malcolm Richards were about the Government’s failure to investigate their allegations.
After investigating both complaints the UN found New Zealand in breach of the Convention against Torture because it had failed to carry out a prompt investigation regarding Lake Alice. UNCAT found New Zealand had violated Articles 12, 13, and 14 of the convention, which refer to a failure to carry out a proper investigation and failure to ensure in its legal system that a victim of torture obtains redress.
The Royal Commission's report on Lake Alice said: "In 2020 (on a complaint by Paul Zentveld) and 2022 (on a complaint by Malcolm Richards) the United Nations Committee Against Torture found that Aotearoa New Zealand had not undertaken a prompt, impartial and independent investigation of allegations of torture at the unit or provided appropriate redress.
"Mr Zentveld did not ask the committee to rule on whether the abuse he suffered at Lake Alice amounted to torture as defined in article 1 of the convention – and it could not do so anyway because the abuse ended in 1977, seven years before the United Nations adopted the convention in 1984 and 12 years before New Zealand ratified it in 1989. Rather, he asked the committee to make findings about obligations Aotearoa New Zealand had assumed after ratifying the convention in 1989."
The Ministry of Justice was asked what preparations Kibblewhite made for his UN appearance, and who advised and briefed him beforehand. He was also asked if he accepted the actual findings of the UN, rather than his erroneous ones, and whether he had read the UN’s report and the Royal Commission’s report on Lake Alice. He was asked whether he agreed with Jagose’s statements before the Royal Commission on Lake Alice and whether he accepted the commission's finding of torture regarding Lake Alice.
A Ministry of Justice spokesperson said: "It is correct that there was no finding of torture as the committee was not considering this issue directly.
"In its 2019 decision regarding Mr Zentveld, the Committee against Torture noted that ‘the state party does not contest the claim that the treatment alleged by the complainant meets the threshold of torture, as defined in article 1 of the convention, or, at least, of ill-treatment, as defined in article 16 of the convention’. The committee also said in its 2022 decision regarding Mr Richards that it ‘considered that the treatment alleged by the complainant meets the threshold of torture, as defined in article 1 of the convention’.
"The Royal Commission’s report on Lake Alice considered that the methods of punishment met the definition of torture. In giving evidence before the Royal Commission the Solicitor-General accepted this was the case."
Lake Alice survivor Leoni McInroe, who fought a civil case against the Crown for nine years, says Kibblewhite's statement in front of the UN showed complete incompetence.
"It's fucken pathetic. It's not like it was the Citizens Advice Bureau working on this or a bunch of volunteers. No disrespect to the Citizens Advice Bureau. They would have been more diligent. And they wouldn't have dealt with it with such arrogance.
"You have to wonder how these people that are in these high-ranking jobs can turn up to the United Nations and display that kind of incompetence. That's embarrassing.
"Is this the Crown yet again deliberately denying and dismissing torture and what took place at Lake Alice? Or is it that they're disinterested, and we're not worthy of actual interest and just getting it right. It is beyond incomprehensible to me at this point all these years later, just the incompetence that just never ends, the dismissal that never ends, the denial that never ends."
McInroe also took umbrage at Kibblewhite saying "it was likely" others suffered torture.
"He said maybe others were also tortured, or likely to have been tortured. It's so insulting. Did he listen to any of the Royal Commission, did he listen to any of the evidence? Tell someone who got shock treatment on their genitals (that this was likely to be torture).
"This is has gone on long enough. This is ridiculous. So we're waiting and waiting and then in front of the UN they do this dumb shit and these are the people that are organising the redress."
McInroe said Kibblewhite and Parker's response was a continuation of the Crown's response to Lake Alice over the past 50 years.
"It never ends.
"The Crown, for nearly 50 years, has received complaints about the harm at Lake Alice knowing the evidence in those complaints to be true. The Crown has consistently denied, dismissed and frankly disregarded the claims made. The Crown, as shown by the Royal Commission evidence, fought the claims in a brutal and relentless manner to avoid liability.
"I find it beyond absurd how you have to continually summarise and clarify the entire process, findings, misinformation and disastrous handling of a very simple and straightforward finding of torture from the Royal Commission that covers all the children of Lake Alice.
"It is entirely absurd that you have to repeatedly point out the Crown's continued abhorrent treatment of the children of Lake Alice.
"This is an embarrassment and disgrace."
Andrew Little, who was the Minister of Justice when the Crown Response Unit was set up to respond to the Royal Commission's findings, was also asked if he accepted the commission's finding of torture and whether he agreed with Kibblewhite’s statement before the UN. His office referred the matter to the Crown Response Unit. The unit referred the matter back to the Attorney-General's office.
The UN found that New Zealand was in breach of Article 14 of the UN torture convention, which requires governments to "ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation."
The Royal Commission’s finding of torture, based on the Solicitor-General’s statements on the Crown’s behalf, means the Crown is the perpetrator of the torture of children. The Royal Commission’s finding also reinforces the UN's findings that the Crown had failed to investigate the allegations. Police apologised to victims for that failure at the commission's Lake Alice hearing.
National leader Christopher Luxon and Act leader David Seymour were asked if they accepted the commission's finding of torture regarding Lake Alice.
Seymour – who has campaigned about getting tough on crime and making sure victims are put first in the criminal justice system – replied: "Act accepts the findings of the Royal Commission and acknowledges the suffering of survivors and their families, we will await the recommendations from the Royal Commission in March 2024."
Luxon has not yet responded.
The Istanbul Protocol, a UN-endorsed document that gives a more detailed explanation of the Convention Against Torture, says the government must respond to any investigation promptly: “The state must, within a reasonable period of time, reply to the report of the investigation.”
It also says: “Torture and ill‑treatment, by definition, are crimes committed by or with the consent or acquiescence of state officials” and that “participation in torture includes ... intentionally neglecting evidence".
Jagose is the subject of a complaint to the Law Society after Crown Law failed to provide evidence requested by police in an investigation into Lake Alice in 2020. The police investigation was a direct response to the UN’s finding.
