Lead Coordination Minister for the Crown Response Erica Stanford says she sought the advice about gang members on behalf of ministers who wanted to "consider the matter" of limiting redress. Photo: RNZ / Samuel Rillstone
Cabinet sought advice on limiting redress for gang members and serious criminals, but ultimately chose to treat gangs the same as any other survivor and create a new pathway for serious offenders.
Information obtained by RNZ reveals the government was advised against a "blanket exclusion" because it risks compromising trust in the integrity of the Crown's response to the Royal Commission into Abuse in care.
The advice described any proposal that would deny serious offenders or gang members access to the redress system would run "directly counter" to the Royal Commission's reports.
Abuse survivor and former gang member Feke Taito says it is "unconscionable" the government considered leaving them out at all: "It just stunned me, actually."
Minister in charge of the Crown's response Erica Stanford announced the coalition's plan for survivor redress last month, specifying a new process for claims from survivors who are also serious sexual and/or violent offenders who have been sentenced to five years or more in prison (high tariff offenders).
A spokesperson for Stanford told RNZ she sought the advice about gang members and serious offenders on behalf of ministers who wanted to "consider the matter" of limiting redress.
The spokesperson said Stanford accepted findings from the Royal Commission regarding the connection between abuse in care and subsequent gang membership.
A briefing paper from the Crown Response to the Abuse in Care inquiry was titled 'Redress options for high tariff offenders and gang members'.
It was addressed to Stanford, Lead Coordination Minister for the Crown Response; Simeon Brown, Minister of Health; and Louise Upston, Minister for Social Development and Employment, who also has responsibility for redress decisions under the Children's portfolio (transferred from Karen Chhour). Minister of Justice Paul Goldsmith was also looped in.
In November last year, coalition members would not say whether gang members would be excluded or not.
The briefing - dated 3 April - said it provided initial advice and options on the "legal and operational implications" of policy changes that would "limit" high tariff offenders' and gang members' entitlement to redress payments under the system.
It recommended maintaining the status quo in which state claims agencies treat claimants "equally" and provide redress payments based on the "merits of their claim."
"Claimants receive and have free use of any redress payments due to them. An exception is prisoners who do not have an external bank account to be paid into."
It specified a "blanket exclusion of high tariff offenders and/or gang members from the state redress system" would likely reduce trust in the integrity of the Crown's response to the Royal Commission and was not recommended by officials.
It also noted officials had not been able to identify any options for "imposing controls on access to redress" based only on someone's status as a gang member that were "operationally workable". This was also advised against.
It later explained the officials had not been able to identify a "solid basis" for establishing whether someone is a gang member.
Corrections holds some information on gang affiliation of the current prison population it said, but noted there would be issues with the comprehensiveness, accuracy and timeliness of that information. It also said the Privacy Commissioner was unlikely to be supportive of new legislation enabling that information to be shared.
The briefing explained the Royal Commission had recommended redress should be "open to all survivors" including those in prison or with a criminal record.
It stated the Royal Commission had pointed to the "high correlation" between abuse in care and high rates of criminal behaviour, imprisonment and the membership of gangs later on, and recommended that context be considered in the design of any new redress system.
"Accordingly, any proposal to deny high tariff offenders or gang members access to the redress system would run directly counter to the Royal Commission's reports," the briefing said.
"Moreover, it would likely compromise trust in the integrity of the Crown's response to the Royal Commission and whether the Crown has fully engaged with the Royal Commission's proceedings and the case studies and evidence set out in its reports."
The briefing referenced two findings from the Royal Commission, the "Pathways to Prison" and "Pathways to Gang Membership" through State-care.
"Previous research has found that one in five, and sometimes as many as one in three, individuals who went through social welfare residences during the Inquiry period went on to serve a criminal custodial sentence later in life," it said, and noted that experience was worse for Māori survivors.
"Many Māori survivors shared how their time in care introduced them to gangs and gang life.
"Joining was often in response to the violence, isolation and disconnection they experienced in care, including disconnection from their identity, culture, whānau, communities and society."
'Trying to drive us even further down'
Fa'afete (Feke) Taito is now the chairman of survivor-led organisation Te Rōpu Toiora.
He said he was stunned to learn the government had considered excluding gang members, but felt it confirmed what he thought the government was trying to do.
"Trying to suppress us at the margins, trying to drive us even further down.
"You know, the whole thing to me is unconscionable."
He said it read like the government was trying to prevent offenders with criminal records and gang members from receiving any type of redress.
"How can they do that?
"After they the Royal Commission inquiry clearly states the majority of these offenders and gang members, myself included, we joined and we connected with these gangs because of the abuse we suffered there, in state care, in these boys homes."
Taito said it made him distrust the government more, and felt like the government was looking for options of "getting out of having to pay or compensate" survivors the state itself had harmed.
He said this, along with the decision not to set up an entirely new system for redress - despite the prime minister promising to do so - showed he could not expect any justice from this government.
He was glad the advice from Crown officials told the government it couldn't go ahead with those options, and that the Crown Response Office engaged with survivors.
"Because it's nothing about us unless it's from us."
The briefing paper said the lead coordination minister for the government's response had commissioned advice on the matter for redress Ministers and the Minister of Justice.
A spokesperson for Stanford said gang members weren't treated differently to any other survivor in regard to seeking redress and that will continue to be the case.
However, there will be a "new pathway" for new claims from serious violent and/or sexual offenders sentenced to five years or more in prison. That was decided after further advice from officials which highlighted "similar regimes" in Scotland and Australia.
That information should be proactively released by Cabinet this week.
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