The Social Services and Community Committee has examined the Redress System for Abuse in Care Bill and recommends by majority that it be passed. We recommend all amendments by majority.

The bill would make changes to the legal framework for the provision of redress to survivors of abuse in State care. It would apply to redress schemes that handle claims of abuse received by core State agencies.¹ The bill forms part of the Government’s response to recommendations in the Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions regarding redress for abuse in State care.

The redress system in New Zealand has developed as an alternative dispute resolution model, to resolve claims for abuse in care out of court. Court processes are still available to people, if they choose to use that option. It is currently comprised of several administrative schemes, which are in the process of being brought together to form a single unified system. This bill provides that the purpose of a redress scheme operated by a core State agency is to recognise a person’s experience of abuse in care and offer an alternative to litigation to provide for redress for abuse in care.

This bill proposes to:

• establish a presumption that survivors who are also serious violent or sexual offenders are not eligible for financial redress under a redress scheme

• provide legal protections for core State agencies when making apologies for abuse in State care, so that personal apologies given on behalf of core State agencies would not be admissible as evidence in civil proceedings.

We understand that the Government considers that payment of financial redress to survivors with convictions for certain serious violent or sexual offences could bring the redress system into disrepute. The bill would also introduce an independent redress officer whose role would be to consider whether the presumption should be overturned.

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss all minor or technical amendments.

We understand that the Government’s intention is that the presumption against financial redress for serious offenders would not apply to redress for torture at the Lake Alice Psychiatric Hospital Child and Adolescent Unit. The response to claims involving Lake Alice, whether torture is involved or not, has historically been a discrete process and is almost complete. New Zealand also has obligations under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Currently, Lake Alice is the only institution where the Government has formally acknowledged torture in State care. However, the Government has agreed that if torture were to be acknowledged in any other historical abuse in care contexts, or any individual were to be successfully prosecuted for torture under the Crimes of Torture Act 1989, any redress provided would not be covered by this presumption against financial redress for serious offenders, or any other provisions introduced through this bill. Redress for torture in those contexts would be provided for separately from existing redress schemes.

To reflect these issues, we recommend:

• inserting new subclause (2) into clause 5 (Interpretation), to make clear that nothing in this bill would apply to any application for redress for abuse in care made in relation to Lake Alice

• inserting new clause 4A, to specify that redress for an act of torture is not within the scope of this bill, and that nothing in the bill would affect the process for redress for an act of torture.

Clause 8 of the bill states that the redress system as set out in clauses 9 to 24 would apply to any application made on or after 9 May 2025 for financial redress under a redress scheme.

Clauses 23 and 24 would make it an offence to fail to declare criminal convictions or subsequent serious violent or sexual offences. These offences would incur a fine of up to $5,000. We consider that the retrospectivity in clause 8 could mean that the fine was applied retrospectively to survivors who made their redress application before this legislation came into force, with its requirement to make a declaration. We also note that retrospective penalties are inconsistent with good law-making principles.

We therefore recommend amending clause 8 so that the offence provisions in clauses 23 and 24 do not apply retrospectively.

Clause 15 would allow a redress agency to conduct a criminal record check of an applicant for financial redress. The bill does not indicate what would be done with this information after it had been used by the redress agency. We consider that privacy safeguards should be inserted into the bill, to ensure that information collected for this purpose is not held indefinitely by the redress agency.

We recommend inserting clauses 15(2) and (3) to require redress agencies to dispose of a person’s criminal record information as soon as reasonably practicable if it is confirmed that they are not a serious offender. We also recommend amending the bill to specify that a redress agency may not use information obtained in identifying whether a person is a serious offender for the purposes of assessing and responding to their abuse in care claim.

Clause 21 provides that if a serious offender is denied financial redress by the redress officer, they may reapply again after three years from the date of the determination. This right may only be exercised once. We understand that this limit was set to avoid repeated reapplications to the redress officer.

However, we consider that there may be circumstances where a serious offender undergoes genuine and meaningful rehabilitation later in life, after both of their application attempts for financial redress have been made and denied. We consider that the redress officer should have some level of discretion in these instances. We recommend inserting new clause 21(5) accordingly, to permit the redress officer to consider a further application from a serious offender if they consider that information provided by the serious offender indicates a change of circumstances that could reasonably change the outcome.

Clause 21(3) specifies that if a redress scheme is being wound up, the Minister responsible for the redress scheme must give public notice. Paragraph (b) requires the redress agency to notify each serious violent or sexual offender eligible for that scheme, but who has been denied financial redress by the redress officer, that:

• the redress scheme is being wound up

• the date on which the redress scheme will be closed for applications

• the serious violent or sexual offender may reapply for financial redress at any time before the date on which the redress scheme is closed for applications.

We consider that anyone eligible for a redress scheme should be given every reasonable opportunity to apply to it, and should know if circumstances have changed. We consider that the redress agency should make its best efforts to notify those affected, and that this could be better reflected in the bill. We therefore recommend amending clause 21(3) to state that the redress agency must “take reasonable steps” to notify each relevant serious violent or sexual offender of the matters set out in paragraph (b).

The function of the redress officer is to determine whether a serious violent or sexual offender should receive financial redress despite the presumption against financial redress for serious offenders. The redress officer must act independently when making this determination.

We note that the bill only provides for one redress officer at any time. We consider that there may be a need for an alternate officer to be appointed, in case the redress officer is unable to conduct their work due to illness, absence from New Zealand, or for any other cause.

We recommend inserting new clause 10(2), to state that the Minister may, at any time, appoint an alternate redress officer if the primary redress officer is unable to act in their role for the reasons suggested above. We also recommend inserting new clause 10(3), which would require an alternate redress officer to meet all of the same requirements that a redress officer must meet. We discuss these requirements further in the next section of this commentary.

Some submitters raised concerns that the presumption could give rise to double jeopardy, as a person could be punished twice for the same offence (first through sentencing, then through the presumption against financial redress). We wish to clarify that this would not be the case.

Section 26(2) of the New Zealand Bill of Rights Act 1990 states that no one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again. This applies to criminal penalties, but does not apply to civil consequences that may result because of a criminal conviction. The presumption against financial redress would be a civil consequence, and would therefore not qualify as double jeopardy.

Labour opposes this bill in its entirety. The bill has not been developed with survivors. It goes against the Royal Commission of Inquiry into Historical Abuse in Care recommendations. This bill undermines the apology that the Prime Minister gave on behalf of the Crown. The Prime Minister said, “for many of you [abuse in care] changed the course of your life, and for that, the Government must take responsibility”.² The Bill is a cynical attempt by the Government to avoid responsibility for the harm it caused.

The Select Committee has recommended some amendments that improve the Bill. However, the purposes of the Bill mean that the entire Bill is irredeemable.

The Bill’s first purpose—to establish the legal presumption that survivors with convictions for serious violent and sexual offences are not eligible for financial redress in the first instance—is contrary to what the Royal Commission of Inquiry into Historical Abuse in Care recommended. The Royal Commission stated:

• ...we consider there should continue to be no exclusion for serious offenders or any extra criteria for them to meet. A large number of those in prison have been in care and the tūkino they suffered may have contributed to their offending. Most are Māori, and they and their whānau are likely to be among those most in need of help through the scheme.³

Survivors experienced breaches of their human rights while in the care of the State. These breaches must be addressed through redress from the State, including the option of financial redress.

There is no justification for presumption against redress for survivors who have committed serious offences because there is a causative link between child maltreatment and criminal behaviour later in life.

The State has been providing financial redress for survivors, including survivors who have convictions for serious and violent offences, for twenty years. There has been no concern from the public about these payments.

Labour agrees with several submitters that the presumption in clause 9 is likely in breach of the New Zealand Bill of Rights Act 1990. The rights engaged likely include the right under section 19 to be free from discrimination on the basis of race or disability, and the implied right to a remedy. It is possible that the presumption may also be a penalty, engaging the right against double jeopardy under section 26(2). We are disappointed the section 7 advice to the Attorney-General on this Bill did not consider either the section 19 or section 26(2) right.

The limits on these rights cannot be justified based on the reputation of the scheme. This bill has, in fact, brought the scheme into disrepute itself—as evidenced by the overwhelmingly negative response to it at select committee. And even if that were not true, the scheme’s reputation is simply not as important as whether it truly provides justice for those who the State has abused.

The bill’s other purpose—to remove any determination of fault or liability in State apologies and make an apology inadmissible as evidence in any civil proceeding—is argued to be necessary to enable the State to make more meaningful apologies. The Government has decided that apologies should acknowledge and take responsibility for the harm survivors experienced. The State believes that doing this will create a risk that these apologies will be used as evidence of fault or liability. However, paradoxically, by legislating to remove any fault or liability, this undermines the ability for survivors to believe an apology is sincere and genuine, and that the State is taking responsibility for the abuse, all of which are core principles for a meaningful apology. In attempting to make apologies more meaningful, this bill will make them less so. If the bill had been developed in collaboration with survivors, these issues may have been mitigated.

The bill is named a “Redress System” bill. But the bill does not legislate a redress system, highlighting the neglect that this Government has shown to one of the key findings of the Royal Commission of Inquiry into Historical Abuse in Care—a finding that the Royal Commission devoted an entire report to—to establish an independent redress system that is trauma-informed and inclusive of survivors at all levels.

The Green Party opposes parts of the Redress System for Abuse in Care Bill. The bill is not in line with the recommendations of the Royal Commission of Inquiry into Abuse in Care (RCI). Our position to oppose this bill aligns with the submissions of survivors Denise Caltaux, Eugene Ryder, Dr Rawiri Waretini-Karena, and Kenneth Clearwater, as well as many other submitters.

Our opposition stems from the bill going directly against recommendations of the RCI, its lack of meaningful consultation with affected communities, and the harm it risks perpetuating against survivors. Additionally, the bill continues to prioritise State control over survivor-led redress mechanisms; to access care, survivors must go back to the same government departments who were responsible for their abuse, perpetuating harm and trauma in the current day.

The Government has selectively adopted recommendations from the RCI while ignoring key provisions that would strengthen survivor rights and access to redress, which include:

• establishing an independent, survivor-led redress system

• the Prime Minister’s apology to survivors on 12 November 2024 being legally binding

• no requirement for police checks for redress applications

• access to redress for all survivors

• access to redress for deceased survivor’s families.

The Green Party believes that going against RCI recommendations is wrong and, though it will save the Government money, does not recognise the harm perpetuated by the State on innocent children. Only delivering on certain RCI recommendations is not enough. Instead, a more comprehensive approach is required to address the scale and harm suffered by survivors of State and faith-based care, while also upholding the findings of the RCI.