Aaron Smale describes the challenge of reporting on the Crown’s abuse of power and lack of transparency

It started with three words and turned into nearly 13,000. Four years ago I wrote a story about the abuse of children in state custody and among a number of troubling things that emerged was a quote. Ros Noonan, former Human Rights Commissioner, had told me that Margaret Wilson, Attorney-General in the early 2000s, had been pressured by Crown Law officials to “shut it down.” 

The “it” was the adolescent unit that ran at the Lake Alice psychiatric hospital in the 1970s. It was not the unit itself that needed to be shut down because it closed in 1977. It was the litigation the Crown was trying to head off that threatened to expose the government to serious legal and financial liability for not only Lake Alice but for the welfare homes that many thousands of children had been through.

A lot of the answers I received to questions in that first story simply raised more questions, none more so than why the Crown’s lawyers were so determined to shut down any investigation into what had happened at Lake Alice. Crown Law’s central reason for existing is to uphold the law and yet here they were trying to subvert it. It bothered me to the point that I started asking further questions, not getting any transparent or timely answers.

The proverbial rabbit hole I disappeared down ended up being a subterranean labyrinth that travelled back decades and was still under construction in the present. But instead of Minotaurs, what I found down there was a bunch of lawyers and officials who were doing their utmost to obscure the Crown’s behaviour. It’s a dark and mysterious place and getting answers has been as much fun as a root canal.

One of the first things I did after that first story was request documents relating to Lake Alice. That was at the start of 2017 and it has taken over three years to get them, when the Official Information Act (OIA) says it should be 20 working days. The OIA also says: “It is the duty of every department or interdepartmental venture, Minister of the Crown, and organisation to give reasonable assistance.”

The proverbial rabbit hole I disappeared down ended up being a subterranean labyrinth that travelled back decades and was still under construction in the present. But instead of Minotaurs, what I found down there was a bunch of lawyers and officials who were doing their utmost to obscure the Crown’s behaviour.

Initially Crown Law said I couldn’t have the documents I was requesting because they were legally privileged. I took it to the Ombudsman and Crown Law tried to argue that any document a lawyer had contributed to or any meeting a lawyer had been involved in meant it was legally privileged. This didn’t fly. I eventually got over 200 pages of documents, large chunks of which are quoted in my investigation, but I’ve no doubt there are thousands of others.

My complaints to the Ombudsman have become so regular that I would often get confused when one of the Ombudsman’s staff phoned me to discuss one of my complaints. On more than one occasion I’d be jabbering on and then realise, to my embarrassment, I was talking about a completely different complaint.

Although the Ombudman’s Office has been as helpful as it can with limited resources and powers, the delays have been such that I thought it worth trying a different tack. In June of this year I emailed State Services Minister Chris Hipkins a long screed, ccing in the PM’s office. I sent this email to Hipkins because of his role as Minister for State Services and because this Government has said it has a commitment to greater transparency. I’ve yet to receive a reply from either Hipkins or the PM. I know they’ve had a global pandemic to deal with but I wasn’t asking about the price of milk. I was raising fundamental questions about government transparency and holding state institutions accountable.  What I got in reply was silence.

In the email I sent I outlined the delays and obstacles I had encountered from several government departments, including MSD, Crown Law, MoH and Corrections. Some of those delays have been literally years. In one case I had requested from Corrections an individual’s prison file, with his permission. As expected there was a mention in the file of this individual disclosing to a Corrections staff member an allegation that he’d been abused by a prominent New Zealander. The individual wasn’t named but I know who is being referred to. But I’m pretty sure the whole file has not been released as there are other documents that I’d expect but they haven’t been provided, particularly psychological reports. Lawyer Sonja Cooper has told me that Corrections repeatedly withholds psychological reports about her clients because they often have references to abuse. These kinds of documents are evidence and the Crown is very good at withholding evidence it holds that might strengthen the claims against it. 

One thing that keeps me sane is that I’m not the only one facing these kinds of obstacles. It seems even the Royal Commission is getting messed around. In evidence given at the Royal Commission by Leonie McInroe, who had gone through Lake Alice, she points out on the first page of her statement that they had requested documents under discovery and were still waiting for those months later.  This has been the experience of anyone who has sought information in this area, including lawyer Sonja Cooper.  It is the height of arrogance and akin to contempt of court for a Royal Commission to also be subjected to this kind of obfuscation. There comes a point where this pattern of behaviour amounts to an obstruction of justice.

This behaviour has extended right up to the New Zealand government’s interactions with the UN. In its response to the UN regarding a complaint about Lake Alice, New Zealand went to great lengths to explain how it had met its obligations, traversing territory that was already out in the open. But after reading McInroe’s evidence it’s noticeable what the New Zealand government had left out of its response to the UN – the Crown’s response to McInroe’s litigation is strangely absent. In McInroe’s telling, the Crown dragged out the litigation over nine years while it cut a deal with another claim that effectively kneecapped her. That conspicuous hole in the New Zealand government’s account of its conduct suggests that Crown Law used some very dubious tactics that it doesn’t want to divulge.

The unwillingness to give answers to these questions tells me there are a few people in high places who aren’t exactly proud of the decisions they made and are doing their best to hide those from scrutiny. Governments of various stripes have always done this to one degree or another. But for any journo that has been around longer than an intern, this took a particularly severe turn under Helen Clark. It was dressed up as a policy called ‘No Surprises’, ie. the minister didn’t want any surprises landing on the front page and required the ministry to inform them of any unpleasant news. This put the emphasis on the public service serving the reputation of the minister and the government over and above the public. While all government departments try to avoid scrutiny of their failures or bad decisions, the worst culprit is the one that receives the least attention – Crown Law.  Crown Law habitually invokes legal privilege to avoid any transparency about its decisions. From the evidence I’ve seen this has created a culture of arrogance and a belief that they are above accountability. 

The Crown’s behaviour in the way it has treated victims of state abuse raises some fundamental questions about abuse of power.  The original abuse of power happened when children in the state’s care were seriously abused by their caregivers who were employees of the state. But this abuse was compounded when those children became adults and made repeated attempts to hold the state accountable. In response, the state has used all its considerable resources to avoid accountability.  Even when it supposedly apologises, those apologies are hollow because they are neutered by a denial of liability. 

One of the absurdities of the Crown’s behaviour is that it has spent millions of taxpayer dollars on lawyers to try and minimise the cost of compensation it pays to victims of state abuse. That abuse includes serious crimes including rape. I once asked how much the Crown had spent on defending allegations of state abuse and was told it was so complicated they couldn’t work it out. I know that a certain backbencher at the time, Jacinda Ardern, had asked the same question and didn’t get an answer either. I wonder if she’s managed to find out since she’s been the Prime Minister. And I wonder what she’ll do about that if she gets reelected, which seems almost certain.

The transparency politicians demand when they’re in opposition seems to evaporate when they’re in power. I expect that one of the responses to my story from the Government will be that the Royal Commission is looking into it and they don’t want to interfere in that process. But the Royal Commission should not be used as a political shield to avoid answering questions that demand an answer now. The commission should not be used as a political containment strategy. It’s got enough on its plate to deal with.

There will be witnesses from the Crown, including Solicitor-General Una Jagose, giving evidence to the Royal Commission straight after the election. They cannot simply say they were defending the Crown’s interests. One of the central reasons a Royal Commission was called was because Crown Law’s legal strategy and the highly dubious behaviour that it generated has not only been an utter failure, it has caused further harm to people who have already suffered at the hands of the state. If Jagose and others refuse to acknowledge and own that failure then they’re effectively telling the Prime Minister that she was wrong to call for an inquiry in the first place. To do so, they will need to repeat the denials they have used with variations for over 20 years in the face of mountains of evidence to the contrary.

Those within Crown Law made choices and they must explain to the New Zealand public (who pay their considerable bills) why they chose the options they did and took the course of action that followed. Those questions are particularly sharp where those choices effectively involved protecting paedophiles and child abusers and causing further harm to their victims.

Aaron Smale is a freelance journalist and PhD student in history studying Maori Children in State Custody at Victoria University.  This year he won the Feature Writer of the Year award at the Voyager Media Awards. Last year he was an Ochberg Fellow at Columbia University in New York where he participated in the Dart Center’s program focused on journalism and trauma.

Aaron Smale is Newsroom's Māori Issues Editor. Twitter: @ikon_media

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