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The tortuous path to justice for state care abuse victims

The abandoned buildings of Kohitere Boys’ Training Centre, Levin.

Aaron Smale’s coverage of abuse in state care helped bring about a Royal Commission into the historic failings. He reflects on the tortuous path to justice.

I probably should have been a bit afraid. Instead, I found myself smiling with a faint nostalgia.

As I walked out into the yard with a prison officer, around 60 inmates started drifting towards us. I was in Hawke’s Bay Prison in the Māori focus unit. And these were some of the Māori men who make up just over half the country’s incarcerated citizens. Only they weren’t a faceless brown abstraction, as they appear in the media. They were a bunch of individuals of all shapes and sizes, each wondering who I was and what I was doing there. 

I was at the prison to take photos for a story for Mana magazine in 2015 about the high number of male Māori inmates. Going on Department of Corrections stats, around 37% of them had been jailed for violent offences. That’s what should have bothered me, but it didn’t. 

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It didn’t bother me because they reminded me of the guys I was with at St Stephen’s School (a Māori boys boarding college south of Auckland). They had all the charm, wit, curiosity and harmless mischief of the boys in my class and dormitory. But what were these young men doing here? What had sent them down this path? Why were they leading the prison statistics, instead of leading their families and people, like many of St Stephen’s old boys?

The impetus for the story was a conversation with then-Mana editor Leonie Hayden, in which I expressed disgust that Māori men were always in the worst statistics – hardly a novel observation – but no one seemed to care. There seemed to be no serious debate about how to change it.

During numerous interviews and conversations for the story, the subject of welfare homes made brief appearances, almost as an afterthought, among the more obvious topics of family violence and lack of education over generations. But there wasn’t any real analysis of the connections, or whether welfare homes might be a root cause of other dysfunction.

These issues were fresh in my mind when Elizabeth Stanley’s book The Road to Hell: State Violence Against Children in Postwar New Zealand was released. I reviewed the book; it niggled away at me. The sheer scale of the abuse began to explain some of the statistics. If you have 100,000 children – most Māori – suffer sexual, physical and psychological abuse at the hands of the state, and receive minimal to no education, then kick them out to fend for themselves with no support, what are the long-term implications for those individuals and their families? 

Stanley drew one obvious conclusion – this was where Māori incarceration started. For so long, the crude narrative was that Māori rates of imprisonment were the result of the “Māori warrior gene”-meets-urbanisation. I never accepted this as an adequate explanation. Now, here was someone with a more plausible analysis.

By this stage, I’d started a fixed-term position at Radio NZ covering Māori affairs and wanted to delve deeper into the implications of that analysis.

Stanley’s publicist tried to get other media interested, but struggled to get traction. A reporter at Fairfax told her they’d already covered it and wouldn’t be doing anything. I got a similar response from a Nine to Noon producer at Radio New Zealand, when I tried to draw their attention to the book. They may have done the story, but they’d missed the significance of the impact on Māori. They’d also missed the costly lengths Labour and National governments had gone to in a sustained effort to make the problem go away.

Black Power’s Albie Epere, who survived Dunedin Boys’ Residential Home and Kohitere Boys’ Training Centre, speaks at a protest outside the Beehive. With Epere is his partner April Mokomoko, who spent time in state care at the Kingslea Residential Centre in Christchurch.
I started tracking down people who knew the subject. After talking with Stanley, I spoke with lawyer Sonja Cooper, virtually the only one representing survivors over the past 20 years. Cooper talks in a torrent of legal detail that can be overwhelming. She’s been dealing with the issue for so long and is so immersed in the legal technicalities that at times she was almost blasé about the information at her fingertips.

She mentioned the Human Rights Commission had written a report on abuse in state care which, among other things, had recommended an independent inquiry. But the report was buried after pressure from National’s Attorney-General Chris Finlayson. Cooper didn’t talk about this as if it were some big reveal, but as just another mundane detail in a saga that had been grinding along for two decades.

The next person I spoke to was Judge Carolyn Henwood, who had chaired CLAS (the Confidential Listening and Assistance Service), a panel set up to hear from victims of state abuse.  It heard from more than 1100 individuals, who revealed what she described as astonishing violence, including sexual violence. More than half had been sexually abused.

She expressed mild scepticism at the government’s motives in asking her to chair the panel, believing the terms of reference were deliberately narrow and didn’t grant her the powers to do much more than listen to victims. While she regarded this as an immense privilege, she felt the process was set up to deliberately minimise any political remedy. However, she was circumspect in her comments. Her recommendations to the government had not been made public but she gave me hints, without being explicit.

Although these individuals had a lot of expertise, I wanted to talk to those who had first-hand experience; I wanted to talk to someone who had been through the institutions as a child. Through a contact in the Mongrel Mob, I ended up talking to Francis McLaughlin, a member of the Notorious chapter. His brother Jimmy had been through welfare homes. Francis told me how his brother had been picked up for wagging school and then ended up in Ōwairaka Boys’ Home in Auckland. They’d tried to visit him and were told he wasn’t available. As they were walking away, Francis turned around and saw Jimmy in the window and ran towards him. When he got closer, he could see Jimmy’s face was puffed up and his eyes were bruised and swollen. 

Later, when Francis was patched, he was living at a Mongrel Mob pad. By then, Jimmy had run away because of the abuse and was living with him. The police arrived one day, kicked the door down and dragged Jimmy out, taking him back to the welfare home. 

When I met Jimmy McLaughlin, he was shy and struggled at first to talk about what had happened. At one point, I asked if he wanted to call off the interview as he was having difficulty forming a coherent sentence. He declined, and began to talk eloquently about what had happened and how it had affected him. It was both moving and heartbreaking.

I pulled together a story proposal for the RNZ news editors, with a lot of detail. The response was positive in many respects. They thought I had enough strong news stories to run on Morning Report through to Christmas (it was then November 2016) and I could wrap up the series with an online feature on the website. But the feature wasn’t considered a priority, and I was told long-form pieces had a limit of 900 words. I was regularly writing magazine features of more than 5000 words, and I thought the subject needed a lengthy treatment to put it in context, including the orchestrated government response.

I quietly ignored the advice and carried on writing, mostly in my own time. I was helped along by a run of news-bombs – earthquakes, Brexit and Trump – that kept pushing out the scheduling of my opening story. It also gave me time to get an interview that would tear the story open.

Judge Henwood had said enough for me to know what she was hoping for from the government. Quite by chance, when looking for something else on the Department of Internal Affairs website, I stumbled across the National-led Government’s just-released response to her recommendations. It was dismissive to the point of being contemptuous and I knew she would be furious. 

The remains of one of the buildings at Kohitere.
For my story, I needed her to talk on the record. Given she was a judge, I didn’t know if she’d criticise the government’s response or even be interviewed. But first I had to find her. I left messages on her email and voicemail and sent several texts. Nothing. Then in came an email; she was in Central China. When I finally spoke to her on the phone, she very calmly but ruthlessly took the government apart, expressing disgust at how the state had treated victims.

When I had first asked for interviews with Finlayson and Minister of Social Development Anne Tolley, they refused, making bland, long-winded statements that had been prepared in advance and didn’t address any of the concerns I wanted to discuss. They were riding it out, or trying to. After my interview with Henwood, Tolley could no longer hide. 

By this stage, I’d finished the feature and it weighed in at a whopping 6700 words. I gave it to RNZ digital editor Alex Van Wel, and said it was longer than 900 words but he just needed to read it. He looked nervous. I was nervous. He came back to me and said he was going to run it.

I then discussed with news director Mary Wilson the interview I had with Henwood. I cut the 20 minutes down to just over two. I also had documents coming out my ears, including the correspondence between Finlayson and Human Rights Commission boss David Rutherford, who’d killed the commission report.

I spoke to Morning Report producer Siobhan Wilson, feeding her the material I had. When she saw the strength of it, she was frustrated the story was only pencilled in for three minutes. Enter Kim Hill, who was filling in on Morning Report that week. Her interview with Tolley was one of her finest, a scorching performance fuelled by her fierce ability to absorb great slabs of research and then ragdoll a politician who is not answering the question. I was travelling into work on the train when the interview was broadcast so didn’t hear it live. Tolley had called in a few minutes before the 7.30am news. I don’t know if this was a deliberate ploy, hoping she’d be saved by the news cutting in before she got too beaten up. If it was deliberate, it didn’t work.

Head producer Martin Gibson had the ultimate call about when to wrap.  When Hill started ripping into Tolley, Gibson decided to push the news off the cliff and let her carry on. The interview blew out to 16 minutes – the news be damned.

I snuck into the newsroom and pulled up the story, then clicked on the audio. I leaned back in my chair and laughed out loud when I saw the length of the interview.

Inmates perform a haka at the Maori Focus Unit in Hawke’s Bay Prison.
Many times since the story ran, I’ve asked myself why it had the impact it did. Other journalists had covered it over the years, bringing momentary attention before it faded back into obscurity. I wish I could claim some special genius, but I can’t. I think the reason it was overlooked was a combination of the people in the story being largely Māori and from the fringes of society, and a general over-reliance on official sources in newsrooms. Journalism is supposed to be the first draft of history, not the second draft of a press release. Or a bunch of tweets cobbled together.

The official response to victims, from both National and Labour governments, was spun as kindly and benevolent. Finlayson said it was working. In reality, it was only working for the government. The political response was a cynical and well-resourced strategy to shut down victims, bullying them into accepting the solution that best suited the state. I even saw a Cabinet paper that predicted the claims would taper off as victims died.

Shortly after my initial story, the Human Rights Commission called for an independent inquiry. It was only then that other news outlets suddenly considered the issue worthy of renewed attention.

As I looked closely at the institutional response, I came to the conclusion the state was behaving like a psychopath. If you consider that perpetrators of abuse, particularly child sex offenders, are in the habit of silencing their victims by threats and manipulation, the state fits neatly into this pattern.

The state is a legal person and in the case of wards of the state, it is also a legal parent. Consider an individual being accused of the crimes this entity is accused of (and has been found guilty of or admitted to in a number of cases): serial rape of children, torture and violence against children, neglect of children, with the numbers running into the tens of thousands. It would be considered one of the country’s worst offenders and most abusive parents.

Add to this the offender’s response and you have a textbook psychopath. If this individual was examined by a criminal psychiatrist, they’d find the person was narcissistic, lacking in any remorse, intelligent but also highly manipulative, devoid of empathy, with a high risk of reoffending – the list goes on.

One of the things that alarmed me most was the absence of any institutions strong or independent enough to hold the state accountable. It was a closed loop and victims had no recourse if the state’s response fell short – unless they wanted to be victimised again.

The HRC was the most obvious example. Thankfully, once my stories were published, the commission started to do its job in speaking up on behalf of victims, led admirably by Race Relations Commissioner Dame Susan Devoy and communications adviser Christine Ammunson. Neither had worked at HRC when its report was drafted and then buried.

The Ombudsman’s Office is next to useless – that’s a story all on its own. Suffice to say the Official Information Act and its enforcement is a joke.

Besides the institutional response, I continued to find stories showing the damage state abuse had done not just to individuals but society at large. On one occasion. I was invited to speak about the issue at a gang hui in Featherston, where I was welcomed onto the marae by about 50 gang members, mostly Mongrel Mob and Black Power. I responded by talking about the work I’d already done, tracking back to the story about the high number of Māori in jail, a story Mongrel Mob member Edge Te Whaiti had helped me on.

I acknowledged Radio New Zealand’s audience was predominantly white, middle-class Pākehā, who would take one look at them and see only a brown face and a patch. But I was interested in where they were from, and who they were connected to. And I pointed out that if they’d been a ward of the state, the state was part of their whakapapa. The state was their parent, and places like Kohitere Boys’ Training Centre in Levin and Epuni Boys’ Home in Lower Hutt were part of their genealogy. There was dead silence. I wasn’t sure how I was being received.

However, at lunch the conversation immediately turned to what I’d said. Many of the guys around me had been through that system. One of them, Albie Epere from Black Power, was particularly forthcoming and I asked if he’d be willing to be interviewed. He was. He spoke not only of the violence and the effect it had on him and many of his associates, but also challenged the government to take responsibility for its actions. 

I combined Epere’s words with an interview I’d done with Kim Workman, a prison-reform advocate who’d worked as a policeman in the 1960s and ended up head of prisons. He’d come across Kohitere as a youth-aid officer and later encountered the same kids as adults when they turned up in jail.

But then my run of stories came to an abrupt end. My contract at Radio NZ was fixed-term, ending in March 2017. I was hopeful it would be extended, but it wasn’t.

Race Relations Commissioner Dame Susan Devoy with Jimmy McLaughlin, who was picked up for wagging school and sent to Owairaka Boys’ Home.
I felt like I was just getting started on the story and then suddenly I had nowhere to go with it. Although other media continued covering the issue, they mainly told personal accounts. While this was important, I also feared a constant parade of victims would create empathy fatigue in the public, particularly as those events were in the past. For me, it was crucial the political response, which was current and ongoing, needed to be at the forefront of further investigation. 

My restless anxiety found an outlet when I received a call from The Nation journalist Mike Wesley-Smith. He had already done stories about psychiatric hospitals and mental illness in the criminal justice system, and had his own information and leads. His background as a lawyer came through in his attention to detail and understanding of the legal terrain, some of which was well beyond my grasp (and patience). Most important, he cared.

He asked if I’d be interested in working with him on a series about state abuse. I was. Our stories showed there were complaints about certain staff at the time of the abuse that had been covered up. In some cases, the perpetrator was moved to another institution.

A test case dubbed the White Trial had been heard in 2007. The name came from pseudonym Earl White (the real name of the victim and other details were suppressed), who had been sexually abused by a cook, Michael Ansell, at Hokio Beach Training School in Levin. Quite by chance, I’d found out who White was when I ran across his brother, who’d also been abused in state care. The brothers sued the Attorney-General for damages, saying state welfare agencies had placed them in institutions where they were physically, sexually and psychologically abused, badly educated and poorly equipped for adult life. They sought special damages for lost earning capacity, along with general and exemplary damages.  

At one point, Crown lawyer Kristy McDonald QC pursued a line of questioning that seemed to imply White had consented to the sexual abuse because he was given cigarettes as a reward, although when asked directly by the judge if she was suggesting a defence of consent might be available, she said she was not.

Even though the judge found the abuse had occurred, the state got off on the technicality of statute of limitations. The case set a precedent that anyone who wanted to go down this legal avenue would be unlikely to win. However, they would be likely to face persistent and detailed questioning from a highly paid QC. Their only other option is the state-controlled redress scheme where the state gets to decide on its level of guilt and compensation.

Keith Wiffin, a survivor of Epuni who has been lobbying on state abuse for 15 years, gave evidence at the White trial (White had also gone through Epuni), and his own case came up next. After experiencing the questioning of Crown lawyers during the White trial, he had no appetite for going through a trial of his own and pulled out.

When he initially made his claim through Cooper Legal, the firm headed by Sonja Cooper, an April 2009 reply from Crown lawyer Una Jagose (who is today Solicitor-General) rejected a proposed settlement. Jagose wrote that his case faced “considerable legal hurdles” due to the Limitation Act and the cover he had under ACC.

Wiffin’s abuser, Alan Moncreif-Wright, had convictions for sexual assault on a boy when he was at Epuni. Before he worked at Epuni, he’d also been caught abusing a child at Hamilton Boys’ Home (the Ministry of Social Development acknowledged this when they paid out a victim). In short, his offending against children could have been prevented.

After media exposure, Moncreif-Wright was later convicted for the abuse against Wiffin and two other Epuni boys. When police indicated they’d be laying further charges, he committed suicide. The Crown eventually settled with Wiffin. 

Prime Minister Jacinda Ardern. Her Labour-led Government has set up a Royal Commission of Inquiry – although the redress scheme continues to be handled by the very department that is accused of the crimes.
Although Prime Minister Jacinda Ardern had been talking about an inquiry before her rapid ascent to the ninth floor of the Beehive when Labour surprised everyone and made it into government, I was still deeply suspicious. My greatest concern was Labour would announce an inquiry that was limited in scope and without any real powers to dig into the detail, particularly of the political response.

The announcement of a Royal Commission has turned out to be good news in terms of the powers granted to the inquiry. Its focus on wards of the state also makes it clear the emphasis will be on people who were the responsibility of the state, rather than particular institutions.

But in some respects the draft terms of reference are setting up the inquiry to fail, or at least be compromised. One of the main reasons for the inquiry is that the redress scheme established by the government is seriously flawed. Despite this, the government has kept this whole process intact – setting up an independent inquiry while the redress scheme continues to be handled by the very department accused of the crimes. 

The time frame also excludes some of the state’s most egregious behaviour. The 1999 cut-off date is rather too convenient. This was when the last Labour government came to power – and some of the most sophisticated tactics in shutting down victims began. 

Ardern is on record as crediting Helen Clark and Annette King as two of her key political mentors. Yet it was they who set in motion the government response to institutional abuse, starting with Lake Alice psychiatric hospital. That response has been flawed from the beginning. There was no inquiry into Lake Alice, despite allegations of criminal behaviour; the redress is well short of what other countries have implemented; and the UN has made serious criticisms of New Zealand’s process. The Royal Commission has to be able to examine that failure. 

This commission has been compared to the Royal Commission in Australia, which was focused on sexual abuse. I don’t think this comparison is entirely valid. The Australian inquiry sprang from media coverage of sexual abuse within the Catholic Church and lobbying around that issue. The inquiry itself was narrow in some respects, broad in others. It was focused on sexual abuse but it looked at this in a range of institutions.

New Zealand’s inquiry as it stands is not exclusively about sexual abuse, although it is certainly included. What happened to wards of the state went well beyond that. In the first instance, wards were removed from their families, in many cases for minor or trivial reasons. Some of the common denominators of those families were they were large, poor and brown.  

Children were cut off from those family connections and breaches were often never repaired. They were incarcerated. I have spoken to individuals who were put in solitary confinement for up to three months, treatment that was very likely illegal. Violence was perpetrated by both staff and other children. There was a complete lack of proper education. The state wards were regularly denigrated. Their removal was supposed to improve their lives. In all cases I’m aware of, it made their lives worse.

Tyrone Marks was made a ward of the state at six. “His story of torture and abuse is one of the worst I’ve heard,” says writer Aaron Smale. “And yet Marks retains a dark sense of humour and is one of the most insightful human beings I’ve ever met.”
Church and state are two quite different institutions, and an inquiry that includes both would end up being two separate operations. It would split the focus and, in my view, neither group of victims would get the attention they deserve. They each deserve their own specific inquiry and the churches involved should stump up and pay, instead of bludging off the taxpayer.

Only since the announcement of a Royal Commission have calls to include those abused in church institutions escalated – possibly because the Australian Royal Commission was releasing its final report at the same time as New Zealand was setting up its inquiry. Unfortunately, I think this has led to a number of people equating the two, when they are entirely different. If our Royal Commission gets bogged down in controversy around who should or should not be included, the only winners will be the perpetrators and those who have covered up for them. 

If there are parallels between Australia and New Zealand’s inquiries, it is actually with the Stolen Generations, not the sexual abuse in the church.

One of my most recent stories was about the similarities between the taking of indigenous children in Australia and Canada and what happened in New Zealand. It focused on Tyrone Marks, who was made a ward of the state at six and spent the next eight years going through different institutions. In one instance, he ran away from Holdsworth Residential School in Whanganui, because he was being sexually abused. 

While on the run, he was hit by a car and dragged underneath, causing horrific injuries. When he eventually came right, he was put into Lake Alice, where even worse awaited. His story of torture and abuse is one of the worst I’ve heard. And yet Marks retains a dark sense of humour and is one of the most insightful human beings I’ve ever met.

The parallels with the Stolen Generations are alarming. Canada had a Truth and Reconciliation Commission and its conclusions are like reading the pages of Elizabeth Stanley’s book. The Bringing Them Home report on Australia’s Stolen Generations also has many passages that echo what happened in New Zealand.

The numbers alone show New Zealand was brutally efficient. Canada had 150,000 children go through the residential school system during the course of a century. In Australia, Kevin Rudd’s apology, refers to 50,000 children being removed, or 10-30% of Aboriginal children. This was over a period that covered more than half the 20th century. 

In New Zealand, around 100,000 children went through the welfare schools over a roughly 40-year period from about 1950. Many were Māori. Statistics are scarce, but Stanley found that, in 1985, Māori comprised 78% of the children in six Auckland institutions. She found Māori and Pasifika children also dominated institutional rolls at Epuni, Hokio Beach and Kohitere.

I wrote a piece for Mana about the institutional racism that underpinned the removal of Māori children. It traced back to the land loss that put pressure on the recovering population in the post-war era, pushing Māori to migrate to urban centres. This came at a time when New Zealand society was particularly harsh towards anyone who didn’t fit in. Māori whānau and their children were caught in an almost perfect storm.

But there’s a big difference between New Zealand and these other countries that’s troubled me more than the similarities. While we’ve looked down on Australia for its treatment of Aboriginal people, Australia made a public apology 10 years ago for taking indigenous children from their families. Canada has taken a similar path. It is now part of both countries’ official narratives.

In that same period, New Zealand has spent millions denying it happened here. And yet the consequences are still very much with us and are costing not only the individuals and their families, but the country as a whole. It is no coincidence prison numbers escalated in the 1970s and 80s, particularly the number of Māori incarcerated. This was when large numbers of Māori children were being kicked out of places like Kohitere and Epuni, with no education, no support, suffering from post-traumatic stress, with habits of violence instilled in them. There’s a direct correlation and causal link. One of the greatest disappointments is the almost complete silence from Māori iwi and political leaders on this issue. I have to wonder why.

What can New Zealand expect and what do I hope for from the Royal Commission? In the first instance, don’t be surprised if there is controversy over terms of reference, who is on the panel and several other aspects. 

Most of the victims don’t have a good education and many have suffered psychological damage from the abuse that still affects their outlook and behaviour. The publicity the commission will attract is likely to trigger some strong emotions in people who have never been listened to or believed. They will view the commission with a volatile mix of suspicion, hostility and exaggerated hopes. For some, though, it will be their best and first chance to be heard and taken seriously. All their lives they have been ignored or not believed. They have been blamed for the damage done to them by others – others who were working for a system that has never properly acknowledged its abject failure.

Many survivors will stagger into the bright light of the commission blinking in disbelief and struggling to put words to their trauma. The dark secrets that have tormented them will be exposed, perhaps for the first time. They will have different expectations and hopes, some of which will not be fulfilled. But what all the victims I’ve spoken to want most is for the inquiry to lead to changes in the system – so current and future generations never go through the same experience. I don’t think that’s a lot to ask.

The public of New Zealand can expect to be shocked by the brutality that has been meted out to children in the name of the state: unnecessary uplifting of children; solitary confinement for months; torture through electrocution; beatings; rape, including gang rape, of children; lack of education. But it won’t be just the abuse that will shock people. It is the sophistication of the cover-up by a whole generation of politicians and bureaucrats who acted in the interests of the state rather than in the interests of the victims. 

It will not surprise me if the public service is deliberately uncooperative. Requests for documents will run into inexplicable difficulties and there will be viral outbreaks of amnesia in Wellington. Bureaucratic bullshit will abound in trying to explain gaping holes in the public record. Straightforward questions will be turned into nettlesome complexities that can’t be explained. I know, because I’ve already met this kind of response. Only it will be tenfold.

But the public service won’t be able to easily fob off the powers of a Royal Commission. The chairman may yet have to bang heads. Don’t be surprised if the state wheels out top-flight lawyers to prevent disclosure of critical information. This happened in Canada.

I can only guess what the Commission will find, but I’ll be very interested to know the legal strategy devised by politicians and Crown Law to try to contain the Crown’s liability while ignoring the human rights abuses that have likely broken a number of international conventions.

New Zealand has long basked in a kind of smugness, of being a country that stands up for human rights, that’s free of corruption, with a highly principled public service. This commission, chaired by former governor-general Sir Anand Satyanand, will likely wipe that smirk off our collective face.

If the information I’ve uncovered in the course of my investigations is any indication, I believe the commission will find New Zealand is simply more sophisticated and cynical in its violation of human rights. I also believe it will show the deeply damaging ways this abuse has played out in the lives of individuals and through generations. 

I believe the Royal Commission, if it does the job it should, will fill a hole in New Zealand’s history, a dark chapter not from the distant past but within living memory. It’s a chapter we’ve long tried to ignore as a country. That blissful ignorance is about to end.

This was published in the July 2018 issue of North & South.