Lawyer says victims of state abuse are waiving their legal rights if they sign, which may include access to other forms of redress that become available
The Ministry of Social Development (MSD) is fast-tracking full and final settlements with victims of state abuse, despite a recommendation by the Royal Commission into Abuse in Care that any compensation payments should be interim until a new redress scheme is established.
The fast-track scheme was announced by Chris Hipkins and Carmel Sepuloni in December when they were public service minister and social development and employment minister respectively.
It was supposedly to provide redress for victims of state abuse who are elderly or in poor health.
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“While Cabinet has yet to make final decisions, I intend that survivors who have resolved their claims will still be able to seek additional redress under the new system, although any payment already received would be taken into account in any acknowledgement payment made by the new system,” Chris Hipkins said when the rapid payments scheme was announced.
But Sonja Cooper, a lawyer who represents hundreds of victims of state abuse, says the MSD is putting pressure on victims to sign full and final settlements without any clarity on what it will mean for their participation in a future redress system.
“I just I think this is all incredibly cynical and deliberate.”
Cooper says the rapid payment offers are referred to as "full and final", with an ambiguous clause that they may be eligible for the future redress scheme. But she says it runs the risk of MSD then telling the Government the new scheme is unnecessary because so many have settled.
The offer letter from MSD states the offer has a clause that may leave the option open for the victim to participate in any future redress scheme. But it isn’t assured and is dependent on a decision from Cabinet that is yet to be made
“That would also play into the Royal Commissions delay, which [MSD] will have known about well before everybody else knew. It will give them the opportunity to push as many claims through this rapid payment framework as they can. And then they'll be able to say to government, well, what's the issue? We've resolved most of the claims, there's only a small handful left, we've tricked them all into signing a full and final settlement. You don't need Puretumu Torowhanui.”
“The Ministry of Education is about to introduce one soon as well, to clear the bulk of its claims. We've got no oversight in terms of what advice is being given.”
The Royal Commission recommended interim payments for those who are elderly or in ill-health pending the establishment of a new redress scheme.
A letter seen by Newsroom offers a victim compensation through the fast-track option, but the conditions of the offer are not markedly different from previous fast-track options. It refers to the offer as full and final, and that the government doesn’t accept any liability for the abuse.
The letter offers to “acknowledge and settle your claim against the ministry, but on the basis that the ministry does not accept any legal liability” and that “we would like to make the following offer to you in full and final settlement of your claim”.
Cooper says this clause essentially means victims are waiving their legal rights if they sign, which may include access to other forms of redress that become available.
One of the UN’s findings was that New Zealand was in breach of Article 14 of the Convention against Torture, which is focused on redress … The Government has not responded to the Lake Alice report and is yet to address its breach under this article
“It's the Crown saying, out of the goodness of our heart we might have some legal risk there but we're not conceding we've got legal risk, so we've settled this with you in case we have got legal risk, but we're not agreeing we have, but here's some money in case we have.”
The offer letter from MSD states the offer has a clause that may leave the option open for the victim to participate in any future redress scheme. But it isn’t assured and is dependent on a decision from Cabinet that is yet to be made.
“We note that this agreement is a full and final settlement but includes a specific clause around the Government's response to the Royal Commission of Inquiry into Historical Abuse in State Care. The Commission has provided a Redress Report to the Governor-General recommending changes to the current redress system for abuse in state care,” the letter said.
Despite the clause, the letter doesn’t state unequivocally that the Royal Commission’s recommendations will be carried out or that the scheme will be open to those who have already settled: “If a new redress scheme is established and that scheme is open to survivors who have been through previous redress processes, then signing this agreement will not prevent you from seeking any redress that may be made available through any such scheme, to those that have already settled with the Crown on a full and final basis.”
In an email response to Cooper Legal raising concerns about the terms of the rapid payment scheme, MSD’s Delwyn Clement stated: “I understand your concerns that by accepting a rapid payment your clients maybe giving up their ability to seek further redress from the new redress system when it is set up. As outlined in Crown Law’s email of 2 February 2022, no formal decisions have yet been made by the Government around the new system and the settlement documentation cannot pre-empt Cabinet decision-making about a new scheme.”
The Royal Commission prioritised its report on redress so the Government could move quickly to implement its recommendations. It requested that the Government respond to the report within four months and give indications when the new redress scheme would be set up, but the Government is yet to implement all of the recommendations. The redress report was released in December 2021.
The Royal Commission also recommended that families should be compensated in the event of a family member dying before receiving compensation, or receiving compensation that falls short of what is being proposed in the new redress scheme.
The report also stated that the government “should offer settlements that do not prejudice survivors’ rights under the new scheme”.
The Government has yet to give any indication what its redress response will be to victims of the Lake Alice adolescent unit after the Royal Commission made an official finding that the abuse they suffered met the definition of torture. The finding was based on extensive documentary and oral evidence, but also on an admission by Solicitor-General Una Jagose on behalf of the Crown.
In 2019 the New Zealand state was found in breach of the UN Convention against Torture for failing to investigate the Lake Alice case thoroughly. This led to police opening a criminal investigation – the fourth, after previous investigations were found to be deeply flawed – which found there was enough evidence to charge those thought to be responsible but it was too late because of their age or ill-health. Dr Selwyn Leeks, who was in charge of the adolescent unit at Lake Alice, died a few months after the police findings. Police apologised to victims at a Royal Commission hearing into Lake Alice.
But one of the UN’s findings was that New Zealand was in breach of Article 14 of the Convention against Torture, which is focused on redress. This states that the redress must be part of the legal system and must be enforceable. The Government has not responded to the Lake Alice report and is yet to address its breach under this article.
The Government’s refusal to accept liability also contradicts recommendations from the Royal Commission. In a section on oversight in the redress report, the commission recommended the Government should legislate that children in the state’s custody should be free from abuse and if this legal right was not upheld then the Crown should be legally liable.
Minister for Social Development Carmel Sepuloni was questioned about these recommendations during the passage of a bill on oversight of Oranga Tamariki last year, but she had not read the report and was not aware of the recommendations. She hung up on me when I repeatedly asked about the recommendations. These were not included in the bill, which was passed by Labour MPs but opposed by every other party.
The appointment of a group, which will include survivors, to design the redress scheme has been repeatedly delayed and missed deadlines according to those involved. The Royal Commission’s final report has also been delayed until next year, meaning its final findings and recommendations won't land in an election year.
