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He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui

Recommendations from the Commission's Interim Report on Redress

The report — He Purapura Ora, he Māra Tipu; From Redress to Puretumu Torowhānui — was tabled in Parliament in December 2021 and makes recommendations on how survivors of abuse in state and faith-based care should be heard and get redress for the harm suffered.

This puretumu torowhānui scheme will aim to restore the power, dignity and standing of those affected by abuse in care, without them having to go to court, as well as take effective steps to prevent abuse. It will fit within what we refer to as the “puretumu torowhānui system”, which is the wider system of services, organisations (including the courts), laws, and policies that have a role in providing different types of puretumu torowhānui and preventing or responding to tūkino in care.
- from the Preface to the Recommendations in the Interim Redress Report

The Church has been working proactively while waiting for the commission’s report. Te Rōpū Tautoko has created a roadmap of work that needs doing across all areas of the Church to make improvements in response to reports or disclosures of abuse in the care of the Catholic Church.

Recommendations

The following list is a summary of the recommendations from the Interim Redress Report. These summaries were prepared by Te Rōpū Tautoko, not the Royal Commission.

Establishment of a puretumu torowhānui system

  1. Crown should establish a Redress System - Puretumu torowhānui – to respond to abuse in care of the state and faith-based institutions.
  2. The system should give effect to te Tiriti o Waitangi.
  3. The system should be consistent with international commitments and law.
  4. The system should be founded on:
    • Tūkino (recognising abuse)
    • Purapura ora (potential to heal)
    • Te mana tāngata (restoration of mana and dignity)
    • Utua kia ea (accounting for harm, restoring balance)
    • Manaakitia kia tipu (nurturing of wellbeing)
    • Mahia kia tika (system of fairness, equity, honesty, impartiality and transparency).

System Design and Delivery

  1. Crown to establish and fund a Māori Collective to design the redress system and work with stakeholders to implement the recommendations.
  2. Crown to establish and fund a Survivor’s Collective to advocate for survivors during the development of the recommendations and be party to the design of the redress system and scheme.
  3. Crown should consult with survivors, experts and other interested people, including Pacific peoples, deaf and disabled people and a cross-section of survivors and experts.
  4. The Crown should consult faith-based institutions, indirect State care providers, other interested parties and the public.
  5. The Crown should take an all-of-system approach to responding to abuse in care.

Public Acknowledgement and Apologies

  1. Key parties (including Church leaders) should publicly acknowledge and apologise for the harm suffered.
  2. Public apologies should be made in collaboration with survivors and confirm to good principles (see 33).

Establishment of a new puretumu torowhānui scheme

  1. The Crown should set up an independent redress scheme
  2. The principles, te Tiriti obligations and other obligations should be applied to the redress scheme.
  3. The redress scheme’s governance body should be diverse and include survivors.
  4. Institutions should phase out their current claims processes. Any institution that chooses to continue its process should direct survivors to the new scheme.
  5. The scheme’s functions should be to:
    • provide a safe environment for disclosing and reporting abuse.
    • make decisions on redress and facilitate apologies, access to support services, financial payments, and other measures.
    • disseminate information.
    • make recommendations on systemic issues.
  6. The scheme should be independent and have no interaction with institutions where harm allegedly occurred except to fulfil its function.
  7. The scheme should be open to all survivors, including those who have been through redress processes.Whānau should be able to continue claims after the death of a survivor if the survivor intended to apply to the scheme.Claims from elderly and ill survivors will be prioritised.
  8. The scheme should cover a broad range of abuse and historical, contemporary, and future claims of abuse in care.
  9. The scheme should cover abuse while someone was in the care of the State (including schools and contracted state care providers) or faith-based institutions.
  10. The Crown should give 4 to 6 months for institutions to join the scheme voluntarily.There should be options to encourage or compel participation.
  11. The scheme should publicise what it does and how it works.The scheme should communicate with survivors in a tailored way, as appropriate to various survivor groupings.
  12. The scheme should be trauma-informed, giving survivors choices and empowering them to make decisions.
  13. The scheme should have processes that focus on nurturing well-being.
  14. The scheme should provide free services to survivors, including:
    • therapy,
    • support services,
    • legal advice,

    and more.

  15. The scheme should offer a listening service to survivors.
  16. The scheme should, if survivors wish, use information disclosed to the listening service in support of their claim.

Two routes to puretumu torowhānui

  1. The scheme should offer:
    • a standard claim – taking account of the abuse and impact,
    • a brief claim - taking account of the abuse only, and
    • the option to make a brief claim first and a standard claim later.
  2. The scheme should work with the survivor to work out what is needed.
  3. A standard claim includes:
    • believing a survivor’s account, as a starting point,
    • considering the reasonable likelihood that abuse took place,
    • considering any impact,
    • meeting the survivor unless the survivor has no wish to,
    • inviting, if a survivor wishes, representatives of relevant organisations and any named perpetrator to hear and understand the abuse and its impact,
    • notifying other parties named in a claim and inviting them to comment. The survivor can respond to the comment but there is to be no questioning of survivors by the third party,
    • ensuring survivors will be safe from any retribution,
    • having clear times within which organisations and individuals must respond and proceed with a decision if they fail to respond in time.
  4. A brief claim includes:
    • believing a survivor’s account, as a starting point,
    • considering the reasonable likelihood that abuse took place, and
    • meeting the survivor only if requested.

Puretumu torowhānui outcomes

  1. If desired by a survivor, the scheme should facilitate meaningful acknowledgements and apologies from the responsible institution to the survivor and others affected by abuse in care.
  2. Apologies should:
    • acknowledge the harm,
    • accept responsibility,
    • express regret or remorse,
    • be made by a person at an appropriate level of authority,
    • commit to taking steps to prevent recurrence,
    • be flexible and respond appropriately,
    • be consistent with cultural practices, and
    • come directly from the institution concerned.
  3. The institution concerned should:
    • work with those harmed to apologise in a way that is meaningful,
    • ensure the person making the apology is trauma-informed and culturally aware, and
    • provide information about steps it is taking to prevent further abuse.
  4. The scheme should give guidance about the form and the delivery of apologies.
  5. The institution should, if a survivor wishes, give an apology as part of a culturally based or other restorative process.
  6. The scheme should enable survivors and their whānau to access a range of measures to restore mana (dignity) and oranga (well-being).
  7. The scheme should be able to offer survivors a choice of modest, one-off redress measures.
  8. The scheme should facilitate contact, such as for pastoral support, with a participating institution if a survivor wishes.
  9. Financial payments by the scheme should provide recognition but not compensation for harm or loss.
  10. For financial payments, the scheme should consider:
    • the seriousness of the abuse,
    • factors that increased a person’s risk of abuse,
    • the impact of the abuse,
    • the principles underpinning the system,
    • the scheme’s standards of proof,
    • consistency and fairness,
    • any other payments a survivor may have received for abuse in care,
    • the need for payments to be sufficiently high to be a meaningful alternative to civil litigation, and
    • compare favourably with those made by overseas schemes.
  11. The scheme’s financial payments should not adversely affect survivors’ financial position and should not count as income, nor reduce or limit any entitlements to financial support from the State.
  12. The scheme should periodically review the financial payments it makes.
  13. The scheme will make available ‘common experience payments’ for those placed in a place of systemic abuse or neglect.
  14. The scheme should have power to recommend an investigation into an institution or other setting to determine if a common experience payment should be offered.
  15. The scheme should give survivors a written record of its decision along with the reasons for its decision.
  16. Accepting redress from the scheme should not:
    • prevent a survivor from taking civil proceedings,
    • affect any rights a survivor may have against an individual,
    • prevent a survivor from making a complaint to Police or other disciplinary body.
  17. A scheme decision should have no legal effect on any organisation or individual named in a claim, other than for the purposes of the scheme.
  18. Survivors should be able to make a claim to both the scheme and ACC. Any payments or services provided or facilitated by one should be taken into account by the other.
  19. The Government should legislate to establish the scheme.
  20. The scheme should:
    • make decisions that are fair, equitable, predictable, timely, transparent and consistent
    • be adequately resourced
    • have an oversight body to consider complaints about the scheme.
  21. The scheme should have the power to:
    • require institutions to give it information
    • give information to others to fulfil its functions.
  22. Survivors and institutions should be able to ask for a review of decisions.
  23. A scheme decision should be open to review.
  24. The scheme should keep confidential any information it receives.
  25. The scheme should redact any alleged perpetrator’s name and details from its decisions.
  26. The scheme should refer allegations of abuse to police and other relevant organisations.Safeguards against neglect or retribution should be built into these processes.
  27. A survivor should be able to disclose the redress they received, the decision, and the identity of the institution concerned.The survivor should also continue to be able to disclose details of the abuse.
  28. The scheme should publish a report, at least yearly.
  29. The Crown should designate an independent agency to review all aspects of the scheme’s operations after it has been running for two years, and at periodic intervals.
  30. The scheme should have the power to report to institutions about systemic issues, require institutions to report back, make recommendations and responses public and provide recommendations to the Crown.

Funding and Service Delivery

  1. The Crown should have overall responsibility for funding the scheme so survivors receive financial payments in a timely manner.
  2. Faith-based institutions and indirect State care providers should contribute to the scheme’s funding.
  3. Those designing the scheme should determine how the to collect financial payments awarded against non-State institutions and how to apportion the scheme’s costs to institutions.
  4. The scheme should encourage the provision of support services locally.
  5. The Crown and the scheme should ensure sufficiently skilled workforces are available to provide support services to survivors.
  6. The Crown should immediately commission a stocktake of available support services for survivors.
  7. The Māori Collective, in conjunction with the Purapura Ora Collective, should commission an expert review to evaluate the services identified in the stocktake and make recommendations.
  8. The Crown should consider establishing a dedicated fund for any extra services or improvements to services recommended by the expert review.
  9. Each institution should establish or nominate an entity to provide a single point of contact with the scheme.

Wider Considerations

  1. Tangible demonstrations of goodwill and reconciliation should be considered.
  2. The Government should consider funding a national project to investigate potential unmarked graves and urupā or graves at psychiatric hospitals and psychopaedic sites.
  3. The Government should take active steps to raise awareness of abuse in care, what it is, its effects, what has been done in response, and how those abused can seek help.
  4. The Government should fund independent Aotearoa New Zealand-specific research on the effects and causes of abuse in care, and social campaigns that seek to eliminate abuse in care.
  5. The Crown should create in legislation:
    • a new right to be free from abuse in care,
    • a non-delegable duty to ensure all reasonably practicable steps are taken to protect this right, and direct liability for a failure to fulfil the duty, and
    • an exception to the ACC bar for abuse in care cases so survivors can seek compensation through the courts.
  6. The Crown should, if it decides not to enact the changes in recommendation 75, consider:
    • the scheme awarding compensation, and
    • reforming ACC, expanding types of abuse covered and providing compensation.
  7. WorkSafe New Zealand should include abuse in care within its focus areas.
  8. The Crown should amend the Limitation Act 1950 and Limitation Act 2010, with retrospective effect, so:
    • any survivor claiming abuse in care when under 20 is not subject to limitation provisions,
    • in many cases survivors who have settled may relitigate, and
    • the court retains a discretion to decide that a case cannot go ahead if it considers a fair trial is not possible.
  9. The Crown should consider whether there should be any other conditions on a survivor’s right to litigate or relitigate a case.The Crown to direct the Law Commission to, within 12 months, review other obstacles to civil litigation.
  10. The Crown should review and consider raising the rates available for abuse in care work.
  11. The Ministry of Justice should offer training to lawyers wanting to take on abuse in care cases and have a public list of lawyers who can work on abuse in care cases.
  12. The Crown should draw up a model litigant policy.
  13. Institutions should act consistently with the model litigant policy in responding to all abuse in care claims.
  14. Institutions should draw up a set of principles to guide its conduct in responding to abuse in care claims.
  15. Institutions should consistently, and in a timely way, help survivors obtain and understand their records in as full a form as possible while still respecting the privacy of others.
  16. Institutions should, before making redactions to protect the privacy of one or more individuals, consider seeking the consent of those individuals to release the information.
  17. The Crown should develop guidelines, applicable to all institutions, on the matters set out in recommendations 85 and 86.
  18. The Crown should complete its work on a policy to streamline the way agencies handle survivor records within 6 months.
  19. The Crown should urgently review disposal authorities relevant to care records and consider whether to set a standard governing what records providers should create and keep.
  20. The Crown should ensure that any monitoring body or monitoring activities relating to children, young people and adults at risk in care nurtures, is consistent with the te Tiriti and human rights obligations, is independent, and operates regularly using staff with appropriate skills and expertise.

Interim Measures

  1. Institutions should use their best endeavours to resolve claims in the lead-up to the establishment of the scheme, not prejudicing survivors’ rights under the proposals in the recommendations.
  2. Institutions should, in the meantime, rely on limitation defences only in cases where they reasonably consider a fair trial will not be possible.
  3. The Crown should immediately set up and fund to make advance payments to survivors who are at significant risk of not being able to make a claim to the scheme. The mechanism should stop when the scheme starts.
  4. The Crown should fund a listening service for survivors in the period between the end of the Royal Commission’s Inquiry and the establishment of the scheme.

Responding to these recommendations

  1. The Minister for the Public Service should, within four months of the tabling of this report in the House of Representatives, make public the Crown’s initial response to the report’s recommendations.
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