18 hours ago
The Ministry of Impunity
Overview:
- The state has admitted torture and abuse of children in state care.
- It apologised in 2024.
- But it is legally and financially dragging its feet in providing appropriate 'redress' to those tortured and abused.
- A legal challenge begins next week.
- Over three reports this week, Aaron Smale examines why the redress efforts are going sideways.
Monday: The Ministry of Impunity
Tuesday: The national debt
Wednesday: 'People need to step down or be removed'
She'd spent days preparing to grill him and after three hours of passive answers and low interest, he was suddenly cornered. And he knew it.
Lake Alice survivor Leoni McInroe had demanded a meeting with the new head of the Crown Response Unit, Rajesh Chhana. The Crown Response Unit was set up by the Government to respond to the findings and recommendations of the Royal Commission of Inquiry into Abuse in Care.
Chhana's appointment was immediately controversial when it was pointed out (by this reporter) that he had previously been the lead official from the Ministry of Justice in New Zealand's delegation to the UN in 2015 to appear before the Committee Against Torture. He'd also been in charge of New Zealand meeting its obligations under the UN Convention Against Torture. The delegation's appearance is a regular part of New Zealand's obligations to explain how it is complying with the international legal conventions it is signed up to. One of those conventions is the UN Convention Against Torture.
Leoni McInroe asked Chhana if he stood by words in a report presented to the committee by Chhana in 2015, which claimed New Zealand had properly investigated allegations of torture at the Lake Alice adolescent unit.
'No I do not,' he responded.
He replied that he was only a couple of months in the role and was reading prepared notes that represented the view of the government of the day.
Did he stand by the words of Judith Collins, Minister of Justice at the time, at the UN in 2014 where she stated: 'In response to Iran, I can advise there is no state torture in New Zealand.'
'No I do not,' Chhana replied.
Would he publicly denounce the words Collins said, McInroe asked.
Chhana blanched. As a public servant he simply couldn't denounce a senior minister of the Crown's statements in public. And that minister was now the Attorney General and hadn't resiled from her statement at the UN. Chhana started to back-pedal, saying he could not publicly go against a minister's statement.
Politicians ducking for years
Collins' words in 2014 were said when she led New Zealand's appearance at a periodic review, the forum where New Zealand gives a presentation on its compliance with the UN conventions it has ratified. This includes the Convention Against Torture.
Chhana is willing to say to McInroe he disagrees with Collins' past words and the implications, but won't (willingly) say it publicly. But those who could disagree and denounce Collins publicly are her parliamentary colleagues.
Judith Collins twice had ministerial responsibilities related to the abuse in care claims and now is partly responsible for determining redress for victims. Photo: Lynn Grieveson
I have repeatedly asked Christopher Luxon whether he is okay with Judith Collins and Una Jagose retaining their positions as Attorney General and Solicitor General respectively, despite being involved in the denial and legal cover for agencies and individuals involved in abuse and torture of children in the custody of the state. Luxon has not responded to written questions. His response when asked at a press conference (a press conference this journalist was initially banned from attending) was such a garbled mess it could not be regarded as an answer.
I have asked the same question of Winston Peters. No answer. I have asked the same question of David Seymour. No answer. I had asked the same question regarding Una Jagose of both Jacinda Ardern and Chris Hipkins when they were Prime Minister. No answer.
Luxon has contradicted Collins' words 10 years later by admitting and apologising to Lake Alice victims that they had been tortured.
He had little choice – a Royal Commission of Inquiry made a finding of torture, that was based not only on a mountain of evidence but also an admission by Jagose. But he has appointed Collins as Attorney General, despite her previous statements that raise questions over what she knew and what she did about it.
This is not simply a matter of historical curiosity. These previous decisions and statements have shaped the trajectory of the Crown's response to victims of state abuse over decades and are continuing to shape the current Government's redress proposals in the present and into the future. Those responses have the potential to create new victims.
But it isn't just a series of decisions. The Crown's response has become a deeply embedded culture of denial and obfuscation that is repeatedly inflicting harm on victims who have already been victimised as children. Various governments have made bad or highly questionable decisions based on bad advice and expedient options presented (or alternative options withheld) by officials. Particularly officials from Crown Law.
On the current evidence this culture has not changed.
Disingenuous Denials – who knew what and what did they do about it?
In her book 'Pulling No Punches' Collins portrays herself as a straight-shooting truth teller who was offended by the mere suggestion that the New Zealand state committed torture.
'The big difference is that New Zealand and other like-minded countries take the obligations seriously. It is a lesson that when we are being judged, it can be by representatives of countries that are unfit to judge anybody.'
'I was bemused to have New Zealand criticised for not reporting on our 'state torture' and 'executions' by two countries who currently do both to their citizens. I replied that we would definitely report on them if we did them.'
In another quote from her book, Collins says: 'I had often told others that 'the truth has a strange way of always coming out''.
Indeed.
Collins' denial at the UN and her justification do not add up. Collins should not have been bemused. Iran had picked up in New Zealand's submission the year before Collins' appearance that there was a serious question about torture. That submission mentions Lake Alice, a psychiatric hospital for the criminally insane that ran an adolescent unit in the 1970s where more than 300 children and young people went through. For years there have been accounts of rape, violence and the use of an ECT machine to inflict electric shocks as punishment, mainly to the head but also other parts of the body, including the genitals. But the Crown's response to those accounts has been an unmitigated failure of accountability. If any country was unfit to judge another it was New Zealand.
Collins was the Minister of Justice in 2014 but she had previously been the Minister of Police. She held the latter portfolio when the police finished the investigation of allegations of torture at Lake Alice in 2010.
The police said publicly there wasn't enough evidence for a prosecution, although in its investigation notes there were several cases where the lead detective said there was a prima facie case based on the documents alone. One detective had spoken to victim Hake Halo and recommended further investigation with a view to prosecutions. But nothing was done to interview other victims, of whom there were dozens. Justice Gallen, a high court judge, who assessed a payout to victims in 2002, had found that what happened at Lake Alice was 'outrageous in the extreme.'
Justice Gallen on his own had done more in six months than the police did during two investigations spanning nearly 10 years. For one, he actually spoke to the victims and reviewed their statements against the documents. He found: 'These are children with whom we are concerned. The ECT was plainly delivered as a means of inflicting pain in order to coerce behaviour.' This is the very definition of torture.
But Gallen also made plain that other crimes had been committed against children.
'A number of claimants, both male and female, allege that they were subjected to sexual abuse from staff members or from other inmates, while at Lake Alice. The detail associated with the accounts, together with other corroborative material, establishes that behaviour of this kind did occur.'
Justice Gallen also discussed what he had found with colleague David Collins, who was also assisting in the compensation process. Collins would later become Solicitor General. According to his statement to the Royal Commission, Collins said he and Gallen were of the view that there was enough evidence to take a criminal prosecution.
Collins claims in her book that: 'The facts and the rule of law should be the basis of any decision for Cabinet… not the court of public opinion.'
But the facts, as found by Gallen and others, and the law very clearly pointed to torture, or outrageous crimes against children at the very least. Under Collins those crimes weren't prosecuted by police, who could have used the Crimes Act. And as Minister of Justice she and the ministry she was in charge of claimed at the UN that allegations of torture had been investigated and there wasn't enough evidence.
There had been ongoing internal discussions at the Ministry of Justice and Crown Law over years from at least when Leoni McInroe filed her civil claim in 1994. Those discussions were not about finding out the facts behind the allegations, they were about trying to find ways to avoid using the word torture when talking about Lake Alice, or trying to convince the UN that the allegations of children being tortured at Lake Alice had been investigated. They hadn't.
In 2004 before one of New Zealand's appearance at the UN, Ministry of Health chief legal advisor Grant Adam had resisted the idea of Lake Alice being included in any disclosures to the UN about torture. He suggested there were different views on how what happened at Lake Alice should be described but 'at this point in time it would not pay to dirty the waters.' Crown Law agreed.
But it was Crown Law that was dirtying the waters. There were clear facts that pointed to torture having occurred at Lake Alice.
New Zealand sent a report to the UN in 2013, the year before Collins' appearance which trotted out the same responses about Lake Alice that it always had – there had been an investigation by Police and not enough evidence was found. Judith Collins signed off on this report.
But the investigation was extremely flawed. Apart from not bothering to interview victims, who'd also made allegations of rape and other crimes, the police had either not investigated properly or not been provided with documentary evidence that verified the allegations.
One such document was correspondence from a Ministry of Education psychologist to his boss describing children being put into an adult ward with criminally insane adults where they were raped and sexually assaulted. He mentions that both the head of mental health, Stanley Mirams, and the superintendent of Lake Alice, Syd Pugmire, knew about this. The psychologist mused at the end of the letter that: 'This poses to us as psychologists in the Department of Education acute ethical problems. Are we by our continued involvement in the hospital conniving at what is potentially most anti-therapeutic and perhaps criminally negligent?'
This question hangs over the ways in which a whole multitude of agencies responded to what happened at Lake Alice in the 50 years since, and the response to abuse in other institutions.
Rajesh Channa. Photo: Public Service Commission
Chhana and others had enough information available to them to know that statements New Zealand made to the UN were not credible and did not stand up to serious scrutiny.
Yet when Collins was asked to apologise by a survivor, she gave an answer that was inaccurate. Lake Alice survivor Karilyn Wildbore, through her lawyer Chris Griggs, asked Collins to apologise for her denial at the UN. Collins found a convoluted way to refuse.
'I used New Zealand's first intervention to deliver a prepared speech,' Collins said in her reply. But the speech notes from the Ministry of Justice do not include the denial and, according to her own account in her book, her response was a spontaneous one.
'My response to Iran's remarks reflected the findings of the United Nations Subcommittee on the Prevention of Torture which had visited New Zealand In April 2013. In its report, provided to New Zealand in November 2013, the subcommittee found 'no evidence of torture or physical ill-treatment' in places of detention In New Zealand.'
'I do not believe that what I told the UPR in 2014, in response to a remark from Iran, was wrong. As such, I am unable to provide the apology Ms Wildbore has requested.'
However, the visit and the resulting report that Collins refers to was only about inspection of present day institutions at that time. It's more than likely the Iran delegation was not referring to that inspection. Instead it is likely referring to claims by the New Zealand government in a 2013 report from the Ministry of Justice – signed off by Judith Collins – that it had thoroughly investigated the Lake Alice allegations and there was no evidence of torture. Iran would have been aware the UN was repeatedly questioning this position. It has been maintained by New Zealand throughout multiple appearances at the UN, including the one Rajesh Chhana was involved in in 2015. But this was not true, which was why Rajesh Chhana recanted under questions from Leoni McInroe.
In fact, the UN had become increasingly sceptical of New Zealand's assurances and eventually found this country in breach of the Convention in 2019 for the repeated failings to properly investigate Lake Alice. That failure included the failure of the police to even speak to dozens of victims who made complaints about being sexually abused and raped. Collins' response to Karilyn Wildbore – which is effectively a response to all Lake Alice victims – is dodging and weaving around these facts.
Questions were being raised by the UN about the adequacy of the police investigation as far back as 2009 when Collins was Minister of Police. In 2009 the UN raised this in a report where it said it was 'concerned that allegations of cruel, inhuman or degrading treatment, inflicted by persons acting in an official capacity against children in state institutions, and against patients in psychiatric hospitals have not been investigated, perpetrators not prosecuted, and victims not accorded redress, including adequate compensation and rehabilitation.'
This was a direct criticism of the NZ police when Collins was the minister.
The Royal Commission reported that in 2012 'United Nations special rapporteur, Ms Felice Gaer, wrote to the government saying the committee was concerned there had been no 'prompt, impartial and effective investigation into all claims of abuse' at Lake Alice and no prosecution of 'alleged perpetrators of the torture and ill-treatment perpetrated there'.'
This reprimand was two years after the failed police investigation on Collins' watch and two years before Collins' denial at the UN as Minister of Justice.
The UN found New Zealand in breach of the Convention in 2019 in a case taken by Paul Zentveld and noted in its decision that: 'the committee expresses concern that despite repeated investigations into the same matter … the authorities of the state party made no consistent efforts to establish the facts of such a sensitive historical issue involving abuse of children in state care.'
That repeated failure to establish the facts was a failure by two organisations Collins had in her ministerial portfolio over this period, police and the Ministry of Justice. Her denial and her refusal to apologise for that failure surely undermines the apology from Prime Minister Christoper Luxon and undermines any confidence the victims of Lake Alice and other institutions can have in this Government's redress.
Crown Law's Conflict of Interest
Luxon's apology has a big void in the middle of it regarding the cover-up of this crime for half a century. The crimes are at a safe enough distance of half a century to admit, but the denials and legal obstructiveness is too close because many of the people involved are still in positions of power. Like his Attorney General.
The Royal Commission found that there were deliberate efforts to cover-up crimes like those committed at Lake Alice, but also against thousands of children who went through other institutions. Those efforts were made by those in senior and leading positions within the state:
'Political and public service leaders spent time, energy and taxpayer resources to hide, cover up and then legally fight survivors to protect the potential perceived costs to the Crown, and their own reputations.'
'Successive government ministers and heads of government agencies who were responsible for the law and policy settings had accountabilities in law to children, young people and adults in their care that they failed to uphold.'
The key phrase here is 'accountabilities in law' – those accountabilities in law are not optional policy choices. They are the law and it is Crown Law that has an obligation to inform the Government of those accountabilities and to carry them out.
Una Jagose was a Crown lawyer on state abuse cases before becoming Solicitor-General. Photo: Screenshot from Royal Commission hearing.
Instead, Crown Law has been absolutely central to the continuing denials and legal cover-up, compounding the massive human and financial costs of the trauma inflicted on children by the state.
It is Crown Law that has ignored, denied and minimised those crimes, despite holding the authority and obligation to prosecute those responsible.
It is Crown Law that has advised ministers in successive governments, sometimes failing to inform them of the Crown's legal obligations under domestic and international law.
It is Crown Law that has fought victims and their advocates for decades to protect the Crown from legal and financial liability, thereby transferring that cost to the victims.
It is Crown Law that has swung in behind ministries like MSD and Ministry of Health to devise legal strategies that are about avoiding legal liability, despite clear evidence of crimes being committed.
It is Crown Law that has represented New Zealand, or advised those who represented New Zealand, at various UN appearances where it has misled the international community on its compliance with international law.
It is Crown Law that has portrayed victims as dishonest or unworthy of the justice they were seeking for the most serious crimes in our legal code, the legal code that Crown Law supposedly knew better than anyone.
It is Crown Law that has withheld evidence from criminal investigations by the police and from lawyers representing victims in civil litigation, evidence that was proof of the guilt of the perpetrators and the liability of the Crown.
And it is Crown Law that has advised Cabinet over successive governments, but that advice has often been lacking in candour by failing to explain the legal obligations that are attached to the acts of torture that occurred at Lake Alice and other institutions. Which is one of the main reasons it still hasn't been dealt with.
Crown Law has acted as the Ministry of Impunity for decades, advising successive governments who want the state's crimes to disappear.
In its report on redress the Royal Commission summarised the Crown's response to victims of its abuse thus: 'Despite harrowing accounts and often obvious signs of physical, emotional or psychological damage, many survivors found their efforts to obtain redress from State and faith-based institutions rejected time and again. For many survivors, their experiences were downplayed, disbelieved or dismissed. Their claims sat in in-trays for months or years. They struggled to get their personal records, and when they did, some were so heavily redacted they could barely make sense of them. A determined few continued their struggle in the courts, only to run into legal brick walls, the most overwhelming being accident compensation legislation and limitation defences.'
Crown Law's behaviour fits the description of what one American professor of psychology has termed an institutional betrayal. Thousands of children in New Zealand went through abuse that was criminal, including rape and torture, but when they became adults they had to endure another form of abuse in the shape of institutions that refused to take responsibility and treated the victims as the criminals. The institution that gets the gold medal for this betrayal is Crown Law.
And the Crown's two most senior legal officers, the Attorney General Judith Collins and Solicitor General Una Jagose, have been involved in significant aspects of that failure at various points in their careers.
Furthermore, they are at present having a huge influence on the processes to provide redress to the thousands of victims. All the legal and financial consequences of that failure have landed on the current government's plate, and yet somehow Collins and Jagose are still deemed to be the government's most trusted legal advisors on the Government's redress.
The shifting advice to Cabinet on redress
Caught in the middle is the minister coordinating the Crown's response to victims of state abuse, Erica Stanford. While Stanford is the figurehead in the Government's response to state abuse, she relies on a raft of different advisors and then has to convince her Cabinet colleagues, who are reliant on Crown Law to tell them the legal implications.
Erica Stanford is coordinating minister for addressing abuse in state care, but Judith Collins as Attorney General remains in the background. Photo: Marc Daalder
This reliance on Crown Law to map out the legal terrain is instead leading the Government to walk into legal minefields it should have been warned about, while victims of the Crown are left to face the ongoing delays and lack of redress.
Now the Crown is facing at least one and possibly more legal challenges that could undermine its whole response to the massive issue of redress for victims of state abuse.
It's arguable that this litigation could have been avoided if the cabinets of successive governments, including the current one, had been properly advised by Crown Law. But Crown Law can bounce these cases down the road and make the victims wait for years, and another government comes along and starts all over again.
The Royal Commission noted that: 'there were opportunities for Crown agencies to take steps that may have led to accountability. For example, in 1997, the Ministry of Health told their minister he had options to establish further investigations or inquiries, which in turn might lead to referrals to NZ Police or complaints to medical authorities.'
That health minister, Bill English, did not take those options, which would have followed at least some advice from Crown Law. Other political leaders followed in his footsteps in the decades following, chief among them Helen Clark and Annette King.
Despite finally admitting to crimes committed by the Crown, the current Government is still following advice from Crown Law that to victims appears to be not about justice or the rule of law, but dodging full responsibility.
One example is a Cabinet paper last year that included a statement that has baffled lawyers representing Lake Alice victims, which said: 'The Government's acknowledgment that some survivors of the Lake Alice Unit experienced torture, as described in this paper, does not create any new liability on the Crown to provide redress. Nor does an acknowledgement limit the options available to Cabinet on what redress could be provided and when it might be offered.'
This statement was likely the reason that when the Royal Commission's final report was tabled in Parliament the Prime Minister admitted what Lake Alice victims had been through was torture and apologised.
This surprised a number of observers (myself included) – why so breezy and honest now, when the Crown had spent literally half a century avoiding the word torture and any accountability that would be required when saying the word?
It seems that Luxon's apology was based on the summary of the legal risk in Stanford's paper, advice that was relying on Crown Law's guidance.
The only problem was that it was nonsense. And Stanford found out it was nonsense a few hours after Luxon's apology from the victims themselves who gave her information that should have been provided to her by Crown Law.
On the evening after the Royal Commission's report was tabled in Parliament, Stanford met survivors of Lake Alice. She quickly learned they knew more than her about the legal obligations under international law when they started quoting international law at her.
She was blind-sided to be finding out during the meeting rather than from her officials before the meeting. Stanford got schooled by the victims on international obligations such as the Istanbul Protocol, a document that gives a detailed interpretation of the UN Convention Against Torture, the obligations that countries have to uphold it and best practice in implementing it.
There was also a major failure here by the Royal Commission itself. The Inquiry had received a submission from the Human Rights Commission's lawyers, laying out the legal obligations on the Crown to provide redress for torture under Article 14 of the UN Convention.
Inexplicably, these obligations for redress under Article 14 were not even mentioned, let alone spelled out, in the Royal Commission's report. The Istanbul Protocol is not mentioned at all in the commission's report on Lake Alice, or on the volume on Treaty of Waitangi and human rights obligations in the final report. Torture is in its own legal category and the Royal Commission should have made clear what the Crown's obligations were in light of its finding of torture on Lake Alice. It didn't.
But Crown Law also had an obligation to fully inform its main client, Cabinet. Cabinet may have decided to deliberately ignore its international legal obligations. Or it simply may not have been told by Crown Law what they were.
Either way, the Government's proposal for redress for Lake Alice victims is now being challenged by an application for a judicial review that will be heard in the High Court across the road from the Beehive from Monday August 25. The decision on the Crown's response will be made by Crown Law.
There is no mention of the Istanbul Protocol in the Cabinet Paper that Stanford put before colleagues in June 2024. But this isn't just a problem that the current Government has come across.
Leader of the Opposition Chris Hipkins was Minister of the Public Service when Labour was in power and he also put a paper to Cabinet about redress for state abuse. The Cabinet paper landed in 2022, a matter of months after a second finding from the UN that New Zealand was in breach of the Convention Against Torture. The complainant in the second case was Malcolm Richards, after an earlier finding in the case of Paul Zentveld.
Despite these two findings, Hipkins makes no mention of the finding of torture and the government's obligations to provide redress under Article 14. But Hipkins, as public service minister, would have had more access to information than Erica Stanford.
But it wasn't just a lack of frank advice from Crown Law and other agencies that was a problem. The Crown was giving two contradictory versions of its position regarding Lake Alice to the UN and the Royal Commission of Inquiry at the same time.
In early 2020 the UN found New Zealand in breach of the Convention in the Zentveld case. In late 2020 Una Jagose was admitting that what happened in Lake Alice was torture. She also admitted that the Crown had always known: '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,' she said.
Survivor Malcolm Richards outside the High Court. Photo: Aaron Smale
Yet around the same time Jagose gave this evidence, New Zealand's representatives at the UN were trying to refute Lake Alice victim Malcolm Richards' torture claim by arguing there was never enough evidence found after a thorough investigation.
New Zealand representatives argued in 2021 that: 'The article 12 obligation imposes a duty on a State party to investigate torture when it has reasonable grounds to do so. The police investigated and decided not to prosecute Dr Leeks because of a lack of sufficient evidence and a determination that the public interest did not merit prosecution. That decision was taken and reviewed by senior members of the police.'
This was basically the same argument New Zealand officials had put forward and that Judith Collins endorsed in 2014.
The evidence had supposedly also been reviewed by Crown Law on several occasions. But Crown Law was not giving all the evidence it held to the police, even though it knew it held significant evidence that was relevant to the criminal investigations.
Furthermore, around the same time police were forced to reinvestigate Lake Alice again after the first of the UN's findings on Lake Alice. This investigation found, among other things, that there was enough evidence to prosecute Selwyn Leeks and others.
Police had to formally apologise to victims at the Royal Commission for the previous failures to properly investigate. The evidence had been there all along, but contrary to what New Zealand had been telling the UN, the Police did not do a proper investigation and Crown Law had withheld crucial evidence.
So why were officials from the New Zealand government trying to convince the UN as late as 2022 that the investigation that concluded on Judith Collins' watch was perfectly fine when it knew it wasn't?
The Minister of Justice at the time was Andrew Little. The chief legal advisor at the Ministry of Justice was Jeff Orr, who is still in this position. The Attorney General was David Parker. The Solicitor General was Una Jagose.
The Royal Commission pointed out that 'although New Zealand had ratified the UN Convention Against Torture in 1989, after the events of Lake Alice in the 1970s, the convention still created a legal obligation to investigate credible historic allegations of torture, prosecute perpetrators and provide proper redress to victims.'
But the breach that is still live in the Zentveld and Richards cases is the breach of Article 14 regarding redress. New Zealand has placed a reservation on Article 14, by which any redress is decided at the discretion of the Attorney General – Judith Collins. This reservation has been repeatedly criticised by the UN. Furthermore, any criminal charges laid under the Crimes of Torture Act have to be signed off by the Attorney General. Collins.
New Zealand is already in breach of Article 14 after two findings from the UN. In a paper from the UN that interprets Article 14, the standard is legal, not just some bureaucratic guesswork or the whim of the Attorney General. A paper published by the UN in 2012 spells out what redress should look like to meet the Convention.
'States parties shall ensure the existence of institutions competent to render enforceable final decisions through a procedure established by law to enable victims of torture or ill-treatment to secure redress, including adequate compensation and rehabilitation.'
'Judicial remedies must always be available to victims, irrespective of what other remedies may be available.'
This echoes the 'accountabilities in law' that the Royal Commission mentions. Either the Crown is subject to the rule of law or it isn't and something as serious as torture and what redress looks like needs to be defined in law.
This long history of Crown Law and other agencies trying to slide around the facts and the law and not giving Cabinet the full picture is continuing in the present in the current government's response to the redress question.
For example, the assertion in Stanford's Cabinet paper that admitting torture didn't create any 'new liability', is seriously flawed. Crown Law was consulted and gave some kind of legal opinion on this matter.
A second possible explanation is even more problematic. If the assertion is playing semantics with the word 'new', it implies that there had been a legal liability all along – decades even – and finally confessing to it was simply an acknowledgement of defeat. The legal liability wasn't new. The legal liability was in fact very old, so old that it was common knowledge among Crown Law and the Ministry of Justice. They had simply been denying or avoiding it all along.
But while implicitly admitting that there was old, outstanding legal and fiscal liability, Crown Law doesn't seem to have initially informed Cabinet about the extent of that liability or the steps necessary to remedy it.
A clue that this interpretation is closer to reality is found in the evidence of Solicitor General Una Jagose before the Royal Commission of Inquiry.
Jagose admitted that Crown Law had known that it was torture.
When questioned directly, she ran through the UN's criteria and frankly admitted that what happened at Lake Alice met the legal definition of torture.
Jagose has been in the habit, including at the Royal Commission, of suggesting the reason that Crown Law defended allegations it knew to be true was they didn't 'see the person behind the file.' She said this at the Royal Commission and it has popped up in her talking points in the media.
It looks like this talking point was lifted from the Royal Commission's redress report, which says: 'It lost sight of the people behind the claims who had been abused while in the state's care.'
But what Jagose leaves out when using that phrasing is the sentence that follows immediately after it: 'Even when it knew the substance of a claim to be true, it used aggressive tactics or hid behind technical defences, and after a series of losses by survivors, the reality became clear: survivors' only real option lay in a one-sided offer from a government agency that they could either take or leave.'
Crown Law's actual behaviour doesn't square with Jagose's statements that it was simply a lack of empathy for the victims – although it was certainly that. The Crown had deliberately used a range of tactics to always put itself in control of the process and hold the power. Jagose both inherited that approach and continued it as a Crown lawyer and Solicitor General.
If Crown Law knew that what happened at Lake Alice was torture and that children were abused in other institutions, then it also knew what its legal obligations were but did not uphold them. One of those legal obligations is to prosecute crime.
This was also known at the political level. Attorney General Chris Finlayson admitted as much in a letter to lawyer Sonja Cooper, who has represented thousands of victims. The letter was addressing a different point she was making but happened to mention that: 'Leeks was practising a form of aversion therapy, using the ECT machine, that was indefensible even for its time (the 1970s).'
This was not some surprise to those at Crown Law or the Ministry of Justice. It had been known for years. So with all this knowledge, why did those within these agencies not carry out their legal duties, duties to prosecute known criminals and provide redress to the victims?
At what point does this failure cross over into obstruction of justice and accessory after the fact? The Crimes of Torture Act has a very clear section on the crime of accessory after the fact committed by government officials. Why have police not investigated this, particularly when there was a criminal complaint on this very matter by a number of Lake Alice survivors?
After getting a lesson in international law from victims of Lake Alice instead of her officials, Stanford put up another Cabinet paper in 2025 that finally included significant mention of Article 14, although it starts out by pointing out the obligations on lawyers representing victims.
'Those providing legal services and the independent arbiter will be instructed to consider the Istanbul Protocol on how to engage with victims of torture for the purposes of determining redress, in particular, ensuring that interview techniques and processes are safe.'
So the Government expects the lawyers representing the Lake Alice victims to abide by the Istanbul Protocol when dealing with their clients, but there is no mention of the Crown's obligations to the victims under the same protocol.
This Cabinet paper has substantially more detail about Article 14 of the UN Convention Against Torture…. 'UNCAT has issued guidance to assist interpretation of Article 14. The guidance is not legally binding but is seen as an authoritative interpretation of its meaning and redress agreed by the Crown will be assessed against it.'
But part of that guidance from the UN says that: 'States parties shall ensure the existence of institutions competent to render enforceable final decisions through a procedure established by law to enable victims of torture or ill-treatment to secure redress, including adequate compensation and rehabilitation.'
While the Convention and the related guiding documents aren't legally binding, New Zealand did pass the Crimes of Torture Act in 1989 as a serious commitment to ratifying the Convention Against Torture. So while there is domestic legislation for the crime of torture, there is no legislation for its redress. The 'institutions competent to render enforceable final decisions through a procedure established by law to enable victims to secure redress' are simply not there in New Zealand legislation.
Instead, redress for victims of torture is being decided by Cabinet members. The Cabinet paper says: 'The fiscal envelope for the individualised pathway would be agreed jointly in 2025 by the Minister of Finance [Nicola Willis], the Lead Coordination Minister [Erica Stanford], and the Attorney-General [Judith Collins], in consultation with the Associate Ministers of Finance (Hon David Seymour and Hon Shane Jones).'
But they're hardly impartial – Collins denied New Zealand committed state torture, but gets to decide what redress for torture should look like. And Shane Jones has publicly attacked lawyer Sonja Cooper who has represented state abuse victims for 30 years.
The amount this group decided to offer Lake Alice victims was $150,000 with an option for victims to go to arbitration, but the budget is capped and there is little room to move. The state that committed torture against children gets to decide the punishment.
The Cabinet paper mentions an Australian case that bears similarities to Lake Alice where the victim was given electric shocks as punishment. The victim was paid out A$825,000 by the State of Victoria and the Uniting Church.
Lake Alice victims are getting around 10-15 percent of that.
Stanford's latest Cabinet paper also poses a warning not just to her Cabinet colleagues but to the country – if we don't sort this out, history is going to keep repeating. Stanford points out that not meeting our obligations will damage New Zealand's reputation and standing in the international community:
'Further complaints to UNCAT by other survivors are possible. New Zealand's application of the (Torture) Convention is also subject to regular periodic review by the UNCAT, meaning this matter will continue to be raised if it is not satisfactorily addressed. In addition, New Zealand is subject to periodic reviews by the United Nations Human Rights Committee (UNHRC) where the issue is expected to be raised if our response is seen as inadequate.'
Which is exactly what is starting to happen. A legal application for a judicial review was filed on behalf of Lake Alice victim Malcolm Richards in response to the Government's redress proposal for Lake Alice victims.
Chris Griggs, the lawyer representing Malcolm Richards in the application, said: 'Having admitted and been found internationally responsible for torturing children at Lake Alice, the Government now thinks it can minimise its liability by setting up a compensation process which it controls and which does not comply with international minimum standards. Mr Richards is seeking a declaration from the High Court that that is unlawful.'
Cruel, Inhuman and Degrading Treatment
Griggs' criticism of the government's redress offer to Lake Alice victims could equally be levelled at the Government's wider redress scheme that it has announced – it isn't independent and is still under direct control by the Government to control and minimise its liability.
While torture is quite specifically defined in the UN Convention Against Torture, the Convention has a far broader application than just that one term. The full title of the UN Convention Against Torture, is actually the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Certain aspects of the abuse documented in the Royal Commission's reports reach the level of torture, but pretty much all of it would qualify as cruel, inhuman or degrading treatment or punishment. And it was inflicted on children and vulnerable adults.
The opening paragraphs of the first volume of the Royal Commission's final report were scathing in this regard:
'Instead of receiving care and support, children, young people and adults in care were exposed to unimaginable physical, emotional, mental and sexual abuse, severe exploitation and neglect.'
'It is a national disgrace that hundreds of thousands of children, young people and adults were abused and neglected in the care of the State and faith-based institutions. These gross violations occurred at the same time as Aotearoa New Zealand was promoting itself, internationally and domestically, as a bastion of human rights and as a safe, fair country in which to grow up as a child in a loving family. If this injustice is not addressed, it will remain as a stain on our national character forever.'[20]
But addressing this injustice is not this government's focus.
The head of the Crown Response Unit Rajesh Chhana met another survivor advocate, who asked him what his priorities were. He said flatly that his responsibilities were not for the wellbeing of survivors. His focus was on what the minister wanted.
That minister is Judith Collins, Minister for the Public Service.
NEXT – Part 2: The National Debt
