The exemplary work of anti-racist researcher and children’s rights activist Dr Oliver Sutherland and his associates in ACORD (Auckland Committee on Racism and Discrimination) documents a deeply disturbing history of abusive state care in the 1970s and 80s. The following discussion draws on a witness statement, dated October 4th, 2019, which Dr Sutherland presented to the current Royal Commission into Historical Abuse in State Care and the Care of Faith Based Institutions.
The aim of this post is to encourage some reflection on the role of advocacy organisations in bringing hidden injustice and suffering to light. None of this happened very long ago and it happened here in Aotearoa; at the hands, or at least under the noses, of state social workers. There are some lessons in here for us all in my humble opinion.
Sutherland and others gathered and analysed official figures to illustrate the operation of racial bias in the child welfare/youth justice system. They also systematically investigated and documented abusive practices which were carried out in institutions during this period. ACORD went to great lengths to pursue justice for individuals and system reform from politicians, senior bureaucrats and the human rights watchdog establishment as it was constituted at the time. Responses to this tireless advocacy were often dismissive. In Dr Sutherland’s own words:
From 1970 to 1986, I personally advocated on behalf of scores of children whose cases I drew to the attention of a series of Cabinet Ministers and others. The notes of my interviews and meetings with these children and their care givers are held in the ACORD archives in the Auckland City Library. They are the case histories which I will detail in this submission. ACORD also instigated a number of Ombudsman, Human Rights Commission, Judicial and other official inquiries into the abuses revealed by these cases.
Within a layered web of structural disadvantage, racist attitudes and prejudicial cultural assumptions clearly contributed to (and continue to contribute to) the disproportionate incarceration and associated maltreatment of Māori children and young people:
There was a marked bias against Māori boys in particular. The results of a study by Ross Hampton of the Justice Department Research Section in 1973 showed that Auckland Police Youth Aid officers, when deciding who to prosecute ‘discriminated against Māori boys by sending a disproportionate number of them to court’ thus ‘inflating their crime rate in comparison with that of non-Māori children’.
Poata-Smith (2001) offers the following excerpt from the Hunn Report (1961) as indicative of the mainstream perception that Māori youth offending was related to cultural deficit: entangled with a failure to conform to the liberal capitalist system of individualised private property rights protected by the rule of law and enforced by the Police:
The report surmised that these property offences were essentially a result of the: ” … survival of the communal way of life followed by Maoris [sic] for centuries. Share and share alike was the custom but propriety rights in a modern society make it a crime to take other people’s property. Ancient custom dies hard”.
ACORD documented and challenged a long and disturbing list of discriminatory institutional practices perceived as inhumane and counter-productive, including: the absence of legal representation in Court; routine use of remand to child welfare custody or Police cells for relatively minor offences; remand to adult prisons and Psychiatric facilities; the normalisation of harsh physical punishments; the use of pecking order systems as punishment and control mechanisms and the customary use of unregulated solitary secure detention in social welfare institutions.
The excesses of this system were arguably concealed by the disciplinary discourses of the time, particularly in relation to the perception that an underclass group of children and young people required resocialisation within a regime of rigid discipline. State violence is sanitised and legitimated in this process.
ACORD documented routine invasive / forced SDT examinations for girls in social welfare custody at Bollard Home in Auckland:
Tina B, who was in Bollard in 1974 described the admission procedures: ‘You were stripped of your clothes and stripped of your privacy when you arrived. You are de-loused – with nit goo and a Dettol bath … then put in a cell. It was very small, with a bed, rubber mattress and a toilet. You were given four squares of toilet paper for all day. We wore pyjamas all day, even for cleaning out our cells. They often didn’t fit too well, which was very demoralising’. Worse was the compulsory venereal disease check: ‘you were moved into another cell and told to take everything off except your top. Then you were put onto a bed and into stirrups like when you have a baby. The old bag shoves your legs around how she likes. She didn’t say thank you; she didn’t say please: Just ‘undress!’ get up there; spread your legs out, etc’. Tina B noted that some girls who were ‘kicking and struggling’ were held down by straps. It was a procedure that was described by all the ex-inmates of girls’ homes. One, who was aged 13 years at the time, ‘wouldn’t take the VD test. I was put in secure, but I still wouldn’t agree. In the end three or four staff came in and I was taken and strapped down for it’.
It is enlightening to reflect on how much of the work of ACORD fell on deaf ears and how ineffective the liberal human rights institutions were in addressing the concerns raised:
By mid-1972 we were advocating for the establishment of a national duty solicitor scheme. Our submission strongly supported the case for a duty solicitor to be present at every court in New Zealand whenever that court was in session and urged that two measures should be taken immediately: (1) all children should be accompanied by a lawyer when being questioned by the police; (2) all children on whatever charge should be represented by counsel whenever they appear before a Justice of the Peace or Magistrate.
The Minister’s response was: ‘Implications that Maoris appearing before the magistrate’s courts in New Zealand are getting less than justice are incorrect … we have the best of British justice for all’. The response of Ngā Tamatoa’s Syd Jackson to the Minister was as quick as it was unequivocal: ‘White racism [is] the basis of our law’.
Racially skewed outcomes were denied or minimised, even when they were clearly illustrated by data drawn from the records of relevant Government Departments. The conclusion that Māori children were far more likely to be detained, locked up and removed from home is inescapable:
It is very clear that Māori children received heavier sentences than non- Māori children. Any Māori child before the court was more than twice as likely to be sent to a penal institution (detention centre, borstal or prison) as a non-Māori child, while the latter was more likely to be fined or simply admonished and discharged.
ACORD acted as a de-facto advocacy service for children in state custody:
By 1974, both ACORD and I had high public profiles and our efforts to gain justice for children in the courts was well known amongst Māori and Pacific community groups who sent to us a steady stream of parents concerned over the treatment of their children by the Police, Department of Social Welfare and the courts. …
Over the years from 1974 to 1978 we assembled dozens of case histories many of which we forwarded to the Ministers of Social Welfare and Justice as evidence of the ill-treatment of children in State care. We had compiled a horrendous picture of physical and mental assaults; of extreme deprivation of liberty; of inhuman and degrading treatment and punishments; of forced sexual examinations; and of unhygienic and culturally offensive practices and routines.
The nature of punishment at the Wesleydale Home for boys between 10 and 14 years is described in the following excerpt. The final reference is to a practice known as the ‘Golden Fist’ whereby a returned absconder was subjected to a beating by another boy selected by staff for the task:
Absconding’s led to the heaviest punishments at Wesleydale – strappings by staff and arranged boy-on-boy boxing matches. One ex-staff member told the Human Rights Commission Panel during their Inquiry in 1980 that ‘it was common for one staff member to hold a boy down while a senior housemaster strapped him repeatedly on the body … one 11 year-old boy would not bend over after receiving six strokes on the buttocks … three staff held him while a fourth administered further strokes until he was severely bruised on the thighs, buttocks and the jaw’. The witness said that he had seen boys receive 15 to 20 strokes with the strap. On other occasions a cricket bat replaced the strap. One boy stated that while in Wesleydale he had been punished by having 12 strokes on the backside with a cricket bat. A boy with whom he had absconded was hit so hard his buttocks bled ‘until there was blood on his legs. But, one ex-staff member said, ‘when you get a lot of absconding and strapping doesn’t work, then you can always try the boxing match … I think it is one of the cruellest things I’ve seen done.
Complaint mechanisms and responses:
The United Nations Convention on the Rights of the Child (UNCRC) came in to force on September 2, 1989 and was not ratified in Aotearoa until April 6, 1993. ACORD made a complaint to the Human Rights Commission in 1979 (established in 1977) on the basis that “… the state was in breach of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights in relation to treatment of children by the Department of Social Welfare in residential homes. The Human Rights Commission held hearings throughout 1980 and finally issued their report in 1982.”
This report detailed the allegations which ‘could’ constitute breaches of specific articles within these covenants:
The report stated: ‘After considering all the information put before it during this inquiry and the representations made, the Commission is of the opinion that some practices and procedures are of such a nature that they raise serious and substantial questions regarding this country’s “better compliance” with the standards set out in Articles of United Nations Covenants on Human Rights, as ratified.’ By then listing each of the ‘allegations … that are of particular concern’, the HRC was going as far as ever it would to find breaches of those covenants. The Report spelled them all out: …
However, as recorded below, the response was ultimately timid and loaded towards the powerful vested interests involved:
In the last section of its Report, the Commission outlined its ‘Conclusions and Recommendations’. It was here that the Commission became weak-kneed. Having acknowledged ‘the difficulty of the Department in running residential institutions’ the Report stated, presumably on the basis of the evidence of the current managers of the Homes, that ‘many, if not all, of the practices and procedures which formed the basis of the representations made by ACORD have been eradicated, and the Department has embarked on a programme of innovative change’. The Commission was, it stated, ‘gratified both by the seriousness which the Department accorded the inquiry and by its willingness to reconsider practices and procedures which came to light during these proceedings’.
There is little doubt that the activities of ACORD influenced care practices to some degree. In 1982 Minister of Social Welfare commissioned Archbishop Johnson and Merimeri Penfold to investigate children’s home practices. This report raised concerns about the continued use of solitary confinement which led to the passage of residential care regulations in 1986. ACORD also challenged the morality and legality of the widespread practice of remanding children to adult prisons. According to Sutherland, encouraging early progress was initially thwarted by political machinations:
… the Ombudsman, Sir Guy Powles, launched a full inquiry into the remanding of children to penal institutions. However, Powles retired having only completed an initial draft report. The draft report included revealing statistics for the years 1974 and 1975. In 1974, 269 juveniles were remanded to adult prisons; of these 53.16% were Māori or other Polynesian. The following year the total had jumped to 320 juveniles and the numbers of Māori or other Polynesian had risen to 57.19%.
Sir Guy Powles’ successor George Laking shelved the report after representations by the Department of Justice. In a press statement dated 8 February we expressed our ‘bitter disappointment’ at Laking’s decision and explained ‘Because the investigation was the first ever into this controversial subject and because the report was to provide guidelines for Government action, ACORD has decided to make the factual material of the draft report public’. The Minister of Justice said he deplored the leak of the report and would not take the matter any further. In the meantime, other cases continued to emerge and ACORD kept the matter in the public eye.
ACORD also continued to highlight the glaring statistical and anecdotal variance in the treatment of Māori and non-Māori within every facet of the juvenile justice system, from arrest to relative severity of sentencing:
In 1981, ACORD published its report ‘Children in State Custody’. It was a collation of 10 years of date and case histories following our frustration with the lack of positive change by the Department of Justice. We wrote ‘ten years which have seen thousands upon thousands of children from the age of eight years or even less, dragged through the police stations, the courts, the welfare homes and the adult prisons. A child, once caught up in this machinery of punishment and retribution, is lucky if he or she escapes without going through the whole progression of a criminal career’. We forwarded our report to the new Minister of Justice, Geoffrey Palmer.
Within a week, Geoffrey Palmer had ordered an inquiry and the Secretary for Justice announced that he had requested District Court Judge Augusta Wallace to inquire into and report on the circumstances preceding and surrounding the detention and custody of the teenage boys.
The process resulted in an unequivocal recommendation for the abolition of this practice which was accepted by Minister Palmer.
At one level this outcome validates the role of liberal legal human rights institutions in moderating excesses of state power. However wider questions about social justice in our liberal settler society also arise from Sutherland’s narrative: questions about who is heard and who’s well-being is valued?
In hindsight, if the clear and carefully documented message of widespread institutional abuse and dysfunctional programme design (and of endemic racism) had been properly heeded, we might be in a very different position today. If time had been taken to digest the wider implications, the current Royal Commission and, more importantly, the underlying suffering of powerless children, young people and whānau that this process signifies, may not have been necessary, now – forty years into the future.
Image Credit: Meadowsaffron