Kei aku nui, kei aku rahi, tēnā koutou katoa.

Ko te mihi tuatahi ki te mana whenua o tēnei rohe, Ngāti Whātua ki Ōrākei, tēnā koutou.

Ki ngā Kaikōmihana, tēnā koutou.

Ki ngā mōrehu i tū kaha, i tū maia ki te korero i nga huihuinga kua pahure ake nei, kei te mihi, kei te mihi, kei te mihi.

Ko Ms Schmidt-McCleave tōku ingoa. Ko mātou nei, ko Mr Clarke-Parker, ko Ms White, ngā roia mō te Karauna.

Good morning, my name is Rachael Schmidt-McCleave. For those who can’t see me, I am a middle-aged Pākehā woman (I own that!) I have brown hair and brown eyes and I’m wearing a green jacket and a green and black dress.

Thank you Madam Chair and Commissioners for the opportunity to present this opening statement for this critical Institutional Response hearing, where the Crown, as represented by the key agencies involved in State care in a range of different settings, will respond to much of the evidence it has heard over the last three years.

For those watching who may not be familiar with the Inquiry process or the Crown response, my colleague Mr Clarke-Parker and I represent all the core government agencies involved with the inquiry.  Also sitting at our table is Ms White, General Counsel for the Crown Response Unit.

The agencies giving evidence in this hearing, and for whom we speak, are the Ministry of Social Development, the New Zealand Police, the Ministry of Health, Whaikaha (the new Ministry of Disabled People), the Ministry of Education, the Education Review Office, Oranga Tamariki, the Department of Corrections, Te Puni Kōkiri (the Ministry for Māori Development), the Ministry for Pacific Peoples, and Te Kawa Mataaho - the Public Service Commission.

One of the principles that Cabinet approved for the Crown’s engagement in this Royal Commission was that the agencies should be “joined up” for the purposes of the Crown response, so while agencies had different responsibilities in the system over time, when I refer to the Crown in this hearing, that reference is to all those agencies.

I want to acknowledge the evidence the Crown has listened to, heard and absorbed over the past three years. I also want to mihi to the courage and the strength of the survivors and their whānau and supporters who have come to this very public forum to share their experiences. Your voices throughout this Inquiry are the very heart of the Commission’s work – without you, it could not succeed. The Crown thanks you for your bravery in coming forward and speaking up. The Crown also acknowledges survivors who have passed away, but whose experiences of abuse in care will nevertheless inform the Commission’s work.  Understanding the past is key to ensuring it is not repeated. You have made this possible and provided a valuable service for those in care now and into the future.

During this inquiry, we have heard of many different types of abuse and neglect, in a range of settings including social welfare, educational, law enforcement and health and disability settings.

We have heard of horrific physical and sexual abuse, of overmedication and inappropriate use of seclusion, and of families who were discouraged from visiting their loved ones.

We have heard of children being separated from their siblings, taken far from their families without being told where they were going, not seeing their parents for years, of being placed with abusive caregivers whose abuse was not checked or prevented and who were never held to account.

We heard that children, disabled people, deaf people, people with mental conditions, lacked effective ways of reporting their abuse and were not adequately monitored while in care. Further, we heard that staff and carers were not always properly trained or screened before employment.

We have heard of people who left State care with little education and limited skills to establish an adult life or a career, of children and disabled people who worked without adequate pay. We heard about a lack of support for young people to transition into adult lives after they left state care settings.

We have heard of violence, lack of love, disconnection from culture and whakapapa, and generally a lack of the kind of care which all tamariki, rangatahi and vulnerable adults should have received.

We have also heard of the long-term impacts to survivors of their time in care, including physical and psychological trauma, cultural disconnection and lack of trust including of the State and of other authority figures, which continues to impact on their lives today. We heard that these impacts are often inter-generational: whanau members have spoken of their painful experiences of living with loved ones damaged by their experiences.

We have heard remarkable stories of resilience. But we have also heard devastating stories of loneliness, struggle, suffering and despair.

We have heard, and we have listened, and we have believed.

Over the past three years, the Crown has also provided a significant volume of material to the Commission, as well as evidence for its various hearings and investigations. In this opening statement, I will outline the evidence that Crown agencies who have been called to provide witnesses will give.

Over the next two weeks eleven Chief Executives with support from accompanying officials, will respond to what they have heard. It is important to also acknowledge that actions speak louder than words and the Crown is acutely aware that its words over the next fortnight will be assessed through future actions and their effect over time. It is hoped that the Chief Executives’ willingness to appear at this hearing will be interpreted as a sign of their intent, and of the seriousness with which they view the experiences related by survivors.

Before that, I want to make a number of acknowledgements on behalf of the Crown. These are that:

  1. the state did not always ensure children, disabled people, deaf people and those with mental health conditions were safe, when in state care [the term “State Care” referred to here is that used in the Terms of Reference of the Royal Commission includes those under the age of 18 in social welfare, education, and law enforcement settings and under 65 in health and disability settings];
  2. children, disabled people, deaf people and those with mental health conditions experienced abuse in a range of settings controlled by the state;
  3. the state did not always stop abuse in state care when it was disclosed or reported;
  4. Māori, Pacific, disabled people and deaf people were particularly negatively impacted, either by being overrepresented in the services, or through the services not meeting their distinct needs; and
  5. record-keeping issues, such as gaps in recording and the loss of some records, have meant that the number of children, and particularly the number of Māori and Pacific children, in state care during the period in question is unlikely to ever be known.

Individual agency witnesses will apply these acknowledgements to their own settings, as relevant, in the course of their evidence over the next two weeks.

These acknowledgements, and others that witnesses may make over the course of this hearing, do not take the place of a more formal government apology of the kind that the Royal Commission recommended in recommendation 10 of its report, He Purapura Ora he Māra Tipu: From Redress to Puretumu Torowhānui, in December 2021. The Government has instructed officials to work on what that more formal apology could look like. Final decisions on that apology are likely to be made after the Royal Commission has delivered its final report in June 2023, so all the final findings and recommendations can be considered.

I in no way wish to denigrate the work of those good and dedicated professionals who worked in the State care system across a range of settings across the decades to provide care for children and vulnerable adults according to the standards of the day. However, society has changed since 1950, and social settings have evolved significantly. Undoubtedly, there is still learning to be done and we are only partway along the path in this regard. The way the State cares for tamariki and rangatahi, deaf people, disabled people and people with mental health conditions, has changed over time, as has the understanding of how to meet the needs of these groups.

We all know more about the needs of tamariki and rangatahi as they grow and develop. We all have a greater understanding of, and reduced stigma around, mental illness, and we all have greater acceptance of the rights of disabled people and deaf people to live and flourish in society in the same way as others. The Crown is party to international instruments such as the United Nation’s Conventions on: the Rights of the Child; the Rights of Disabled People; and the Rights of Indigenous people. Obligations inherent in those mechanisms create a context for policy making and service development that did not exist in the past. Our understanding of the role of Te Tiriti o Waitangi in the constitution and society of Aotearoa New Zealand, and the place of Māori as tangata whenua, is at a level unparalleled in earlier decades – although there is of course still more learning and more work to do.

But, despite all those changes, what is abundantly clear is that there is a bleak history of abuse in care, of behaviour that is unacceptable in any society and in any time period. Throughout the period the Commission is considering, the State had an obligation to keep all those in its care safe. Through the course of the Commission’s work, survivors have shared many experiences that are unacceptable and are abhorrent by any objective standard, both then and now.

This bleak history has now, through this Commission, been exposed and we have all assumed the mantle of helping improve the system across all settings. The Crown hopes this means that the stories we have borne witness to will not happen in Aotearoa again. The Crown has stated repeatedly in these hearings that it is listening, and that survivors are heard, and they are believed.

The steps now being taken across the Crown, which you will hear about in the next two weeks, have been informed by the weight of the evidence (both survivor and technical evidence) before this Commission. The changes made by the Crown to date have not, and cannot, address all the lessons learned by the Crown but the Crown is committed to ongoing change and improvement, particularly as a result of this Commission’s recommendations.

To assist the Royal Commission with its work, the Crown has provided extensive written and documentary evidence from all of the above agencies to help us all understand the structural, systemic and practical factors that caused or contributed to the abuse of individuals in State care.

In this hearing, those key Crown agencies will provide evidence to the Commission on many of the lessons they have learned, both over the decades and through the course of this Inquiry. They will inform the Commission about some of what has changed over the last 70 years, and why. These changes include shifts in policies and professional practices, such as: de-institutionalisation, community service provision, new understandings about the treatment of mental illnesses and support for disabled people, restorative justice processes, increased mechanisms for monitoring and oversight of the system, new ways of supporting families and of working more closely with Māori organisations and whānau, hapū and iwi that are either in place, or being formulated, and of working to ensure that the experiences we have heard, and which have filled us with such sorrow, don’t happen in Aotearoa again.

The Crown’s evidence is not to suggest that the current system is perfect or that abuse never happens, but to say that while the system is much improved there is still work to do. However, this evidence is intended to assist the Commission to focus its recommendations on where further improvements can be made and what else needs to be done to ensure that the experiences heard in this inquiry are not repeated.

Understanding the role of the public service is critical to understanding the evidence you are to hear. The public service is part of the Crown, but departments and agencies cannot act unilaterally of Government except where independence is specifically provided for in statute. Under the Public Service Act 2020, the public service supports constitutional and democratic government and enables the current and successive governments to develop and implement their policies (see section 11).

Under the Act, the role of the public service in relation to the Treaty is to support the Crown (as the Treaty partner) in its relationships with Māori under Te Tiriti o Waitangi:

  1. by developing and maintaining the capability of the public service to engage with Māori and to understand Māori perspectives; and
  2. in specific matters relating to employment of public servants (see section 14).

The public service is not a Treaty partner in its own right, but supports the Crown as a whole in this role.

In that context then, the specific themes that between them the Crown witnesses will be addressing include those matters which my friend Ms Beaton QC outlined and which I do not need to take you through but which are contained in my written statement:

  1. The legislative and policy settings which seek to implement and uphold Te Tiriti o Waitangi.
  2. The legislative and policy settings which seek to meet the needs of Māori, Pacific and Disabled people and people with mental health conditions, including measures to ensure diversity of staff to meet the needs of those groups.
  3. The ways in which agencies have sought to address the impacts of racism, ableism and bias on the delivery of care services.
  4. The monitoring and oversight of the care system.
  5. The circumstances around the removal of tamariki and rangatahi from their whānau and their subsequent placement into care.
  6. The development, monitoring and updating of care standards, how compliance with those standards has been ensured, and the establishing and monitoring of third party providers.
  7. The delegation of care by the State to faith-based institutions, and the degree of State oversight and responsibility.
  8. The vetting of caregivers and staff.
  9. The education, training and resourcing of caregivers and staff.
  10. The provision of education to those in care.
  11. Complaints processes, including referral of complaints to Police and professional bodies.
  12. How the State has investigated and prosecuted complaints of abuse in care.
  13. The funding of the care system.
  14. The extent to which recommendations from previous inquiries have been implemented.

The witnesses you will hear from have knowledge of particular areas that will be addressed by the Commission. However, Commissioners will appreciate that these witnesses will have limitations as to the extent of their knowledge about historical matters dating back to the earlier decades of the inquiry, and more generally, due to both the sheer volume of material relevant to the Commission’s work and the time constraints associated with this hearing.

Turning now to the Crown witnesses, then, who will speak to the themes I have mentioned:

  1. Today you will hear from MSD: Debbie Power, the Chief Executive of MSD will give evidence, accompanied by Barry Fisk who will give evidence on the accreditation process, and Arran Jones, the Executive Director of Te Mana Whakamaru Tamariki Motuhake/the Independent Children’s Monitor, who will speak to the function of the Independent Children’s Monitor.
  2. Tomorrow, Police Commissioner Andrew Coster will give evidence, accompanied by Deputy Commissioner, Tania Kura.
  3. On Wednesday, the Ministry of Health and Whaikaha (incorporating the Office for Disability Issues) will appear. Specifically, you will hear from the Director-General of Health, Dr Diana Sarfati, who will be accompanied by Dr John Crawshaw, Director of Mental Health and Addiction, Acting Associate Deputy Director-General Mental Health and Addiction, Dr Arran Culver, and Deputy Director General Māori Health John Whaanga. From Whaikaha, the Acting Chief Executive, Geraldine Woods, will give evidence. She will be accompanied by Amanda Bleckmann, the Interim Deputy Chief Executive, Service Delivery, who will speak on operational settings and safeguarding, and Hannah Kerr, General Manager, Policy who will speak to Whaikaha’s policy and strategic direction. Whaikaha’s evidence will speak on the reasons that Whaikaha was established and its strategic direction in supporting disabled people, tāngata whaikaha Māori, Pacific disabled people, and whānau; the Enabling Good Lives approach and the disability system transformation; and how Whaikaha seeks to uphold Te Tiriti o Waitangi and tino rangatiratanga, and safeguard disabled people from abuse and neglect.
  4. On Thursday the 18th, the Ministry of Education will appear. The Secretary and Chief Executive, Iona Holsted, will appear, accompanied by David Wales, National Director, Learning support, Rachael Vink, Manager National Service Support and Guidance, Hira Gage, Director, Tai Tokerau (ops), and Tipene Chrisp, GM Policy (Māori education).
  5. Finally this week, on Friday, you will also hear from the Chief Executive of the Education Review Office, Nicholas Pole, accompanied by Linda Pura Watson, DCE, Evaluation and Review and Māori, and Jane Lee, DCE, Review and Improvement, followed by  Lesley Hoskin, the Chief Executive of the Teaching Council (the regulatory body for teachers).
  6. Next week, on Monday the 22nd, three days of evidence from Oranga Tamariki will commence. Chappie Te Kani, the Chief Executive, will appear, accompanied by Peter Whitcombe, Chief Social Worker, Nicolette Dickson, Tumu Tuarua Te Kounga o te Mahi me ngā Wheako Deputy Chief Executive – Quality Practice & Experiences, Paula Attrill, General Manager, International Casework and Adoptions, Frana Chase, Director, Youth Justice Transformation, Aiolupotea Sina Aiolupotea Aiono, Chief Advisor, Pacific and Claudia Boyles, Chief Advisor, Disability.
  7. On Thursday 25 August the Department of Corrections Chief Executive, Jeremy Lightfoot, will appear, accompanied by Emma Gardner, Director Mental Health and Addictions; Neil Beales, General Manager Custodial and Chief Custodial Officer; Jessica Borg, General Manager Psychology and Programmes; and Rebecca Barson, General Manager Reintegration and Housing.
  8. At the end of the week, on the last day of the hearing, you will hear evidence from Laulu Mac Leauanae, the Chief Executive of the Ministry for Pacific Peoples, accompanied by Aiono Matthew Aileone, the Deputy Secretary, Policy. They will be followed by David Samuels, Chief Executive of Te Puni Kōkiri, accompanied by Grace Smit, Deputy Secretary, Strategy, Finance and Performance. Finally, you will hear from Peter Hughes, the Public Service Commissioner.

Necessarily, there will be limits on the extent to which witnesses are able to speak to the past, such as when they do not have personal knowledge of the events or if the records cannot be found. If appropriate, the Crown may file additional evidence to assist the Commission. Nonetheless, these witnesses will speak not only to the specific themes expressed above, but also about many of the lessons their agencies have learned along this pathway to improve the various State care systems.

Nō reira, tēnā rawa atū koutou katoa.


Rachael Schmidt-McCleave/Max Clarke-Parker

Counsel for the Crown Response

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