Toby Manhire: We need an inquiry now into child abuse in state care

Tolley argues that an independent inquiry is unnecessary because we know already that only 3.5% of children in state care suffered abuse and neglect.

Among the things Anne Tolley said during an engrossing interview this week with Kim Hill, on the subject of historic child abuse in state care, was this: "In some cases they've had an apology from me, and I was only a child at the time."

For straw-bombshell moments it was up there with Gerry Brownlee's recent revelation that geologists cannot actually stop earthquakes. It turns out that the current minister of social development was not a government minister, nor even a grown-up, from the 1940s through to the 1980s, when more than a thousand children suffered appalling abuse. She was only a child at the time, apparently, and are you suggesting eight-year-old Anne should have swept through the foster homes and borstals of the country, rescuing the poor wretches?

While it is easy to regret Anne Tolley's inability to, for example, travel through time, nobody is holding the minister personally responsible for the outrages that happened in previous decades. What has been requested of her, however, by Judge Carolyn Henwood, who spent seven years hearing from victims, by the New Zealand Human Rights Commission, and by a number of victims themselves, is an independent inquiry into these heartbreaking, contemptible abuses. Her answer? No. No. No.

Tolley argued in parliament this week that while the historic claims resolution team is located within the Ministry of Social Development, it is "impartial and operates independently" - or, at least, independently "of Child, Youth and Family". And, "it is important to note that the Ministry of Social Development did not exist in the 1950s and 1960s when most of this abuse occurred."

Full marks for the fast semantic footwork, minister, but you need no more than a scintilla of imagination to work out how that assurance might sound to someone who had suffered horrific abuse in government care. Don't worry, it's a different department! Kind of!

The independence thing was a key recommendation from the Confidential Listening and Assistance Service panel, which heard between 2008 and 2015 from more than 1100 people who were abused in foster homes, institutions, health camps and borstals. What did the panel encounter? "We were so astounded, dumbfounded you might say. The degree of physical violence, just how harsh it was," the panel chair, Judge Henwood, told RNZ. "We're talking about beatings, punchings, whacking with pieces of wood, jug cords, really extreme violence. Then there was sexual abuse. We thought it would be rape of girls, of which there was a lot, hundreds. With the men, however, exactly the same."

Henwood's concern is not limited to the abuses of the past. An independent body, along the lines of the Police Complaints Authority, would have a contemporary function. She had been shocked, for example, to discover that MSD has no articulated policy on duty of care. "I was astounded ... I think they're now trying to build this new department. I'm on the edge of my seat wondering whether these issues are going to be dealt with in that department."

Adopting logic in the shape of a ferris wheel, Tolley argues that an independent inquiry is unnecessary because we know already that only 3.5% of children in state care suffered abuse and neglect - a claim that can only be tested by holding an independent inquiry. She says an independent inquiry is unnecessary because there was no systemic abuse - a claim that can only be tested by holding, here we go again, an independent inquiry.

Henwood's assessment is blunt: "They can't see it, they don't want to see it and they always want to be in the right. With that kind of attitude at the top of the government department it doesn't bode well for the future."

Henwood's panel wasn't the first to conclude an independent review is essential. In 2011, the NZ Human Rights Commission urged the government to establish "an independent body with the power to provide support for rehabilitation, compensation and an apology". That report was buried, following objections from attorney general Chris Finlayson that then commissioner Rosslyn Noonan had confused requirements for impartiality with independence. In correspondence with Finlayson, Noonan wrote, "The absence of a comprehensive, independent review leaves unanswered the question of the extent of systemic or institutional failure of the state's duty to those in its care." The absence of independence "affects claimants' trust in the process and the extent to which victims and, indeed, the public can have confidence that the outcomes are just and fair".

Tolley has rejected the suggestion that victims want to seek an independent inquiry; more than 700 of the 1100 claimants had agreed settlements with the government, and victims didn't want to go through the agony of reliving it all again. It wasn't the victims, but "A judge [who] wants an independent inquiry," she insisted.

In its excellent coverage, RNZ has heard from a number of victims who, contrary to Tolley's claim, are determined such an inquiry is needed. One of those, Jimmy McLaughlin, explained to reporter Aaron Smale the impact of what happened to him. "Because of the abuse that I went through in welfare care - the sexual abuse, the physical abuse and the psychological abuse - it put me on the path that led me to my life of imprisonments and broken relationships."

Criminologist Elizabeth Stanley, author of a book on these decades of abuse, has pointed to the wider picture: "The funnelling of Māori children into welfare institutions was the real start of our systematic mass imprisonment in this country."

Another victim, Grant West, who was subject to a catalogue of sexual and violent assault as a state ward in the 70s, said, "A Royal Commission would get answers to all the questions - why did it happen, why was it not stopped and why was it allowed to go for so long - and would put new implications in place so it doesn't happen again. The only way we are going to change is to learn from the past and the people who suffered through it."

In a written response, Tolley concluded, "The government recognises that in the past the care system failed some of the children and young people in its care. We are working very hard to change that system and also recognise in a personal way how it has so seriously affected victims. We will continue to do that, but I am not convinced that a Royal Commission of inquiry will be of any further benefit to us."

What will it take to convince her? The case, right now, is irresistible.