4.1 Introduction

This chapter describes three very different Irish redress programmes. The Industrial Schools programme operated by the Residential Institutions Redress Board (RIRB) emphasised interactional injuries, had many applicants, a large budget, and high public profile. The RIRB was followed by Caranua, an ancillary programme that redressed the consequences of injurious care. The third programme responded to survivors of Ireland’s Magdalene laundries by addressing structural injuries. Its designers were told, in short, to avoid creating anything like the RIRB.

4.2 The Industrial Schools Programme

In 1999, the television series States of FearFootnote ¹ exposed systemic abuse in Ireland’s residential industrial schools. Responding to the resulting public uproar, Taoiseach Bertie Ahern made a public apology on 11 May 1999 in which he announced his intention to set up the Commission to Inquire into Child Abuse (the Laffoy/Ryan Commission). The commission consisted of two bodies, the Confidential and Investigation Committees. The Confidential Committee heard testimony from survivors in private and without judgement, while the Investigation Committee held inquisitorial public hearings. Almost immediately, solicitors representing large numbers of survivors refused to participate in the Investigation Committee until they were guaranteed a monetary redress programme (Laffoy Reference Laffoy2001: 13).

Acceding to that demand, the Irish government appointed the three- person Compensation Advisory Committee to design a redress programme. No survivor served on the committee. Its 2002 report (The Compensation Advisory Committee 2002) was adopted into statute (‘Residential Institutions Redress Act’ 2002). That Act established the Residential Institutions Redress Board (RIRB) to operate the programme, securing its independence. While the Advisory Committee proceeded, the government negotiated an agreement with the religious orders that operated most industrial schools. The orders paid €128 million in cash and property to the state in exchange for indemnities against survivors who obtained redress. That figure was expected to fund approximately half of the programme’s cost (Committee of Public Accounts 2005: unpaginated). That estimate proved grossly erroneous and politically calamitous.

The RIRB received survivor applications, arranged support for applicants, and adjudicated settlements. Chaired by Justice Esmond Smyth, the RIRB’s twelve board members came from different backgrounds, including law, academia, and social work. Board members were not public servants and membership varied over time. In addition, the RIRB had, at full complement, two full-time and four part-time lawyers and approximately thirty seconded civil servants as administrators. There was no effort to include survivors.

The RIRB’s outreach strategy focussed on broadcast media. Irish news regularly reported on the redress programme and, in addition, the RIRB advertised on television (with an emphasis on sporting events), local radio and newspapers, and tabloid publications (IR Interview 3). The RIRB held early meetings with survivor groups, including émigrés in the United Kingdom. The RIRB developed a well-run website on which the RIRB irregularly published newsletters alongside its annual reports (Residential Institutions Redress Board Undated). To help participants, the RIRB published both short and long guides to the application process. The long guide provided a consistent and authoritative reference, while the shorter version was a more accessible web resource (Residential Institutions Redress Board 2005b, 2003).

The RIRB originally expected 6,500–7,000 applications (Committee of Public Accounts 2005). By September 2015 there were 16,649, of which 15,579 resulted in payment offers (McCarthy Reference McCarthy2016: 27). An eligible application needed to meet five conditions: survivors must apply; be alive on 11 May 1999 (the date of the Taoiseach’s apology); provide identification; evidence of institutional residence; and evidence of injury. Concerning residence, eligible applicants must have stayed at a scheduled institution. Originally 123 institutions were scheduled, the minister of education would add 16 more, bringing the total to 139. Survivors without formal identification could swear an affidavit confirming their identity. Nine cases of apparent misrepresentation were referred to the police, resulting in one prosecution. Men submitted 9,981 applications and women submitted 6,668: a ratio of nearly 60:40 (Residential Institutions Redress Board 2017: 29). That difference might reflect the survivor population, there were more boys than girls in scheduled institutions (O’Sullivan Reference O’Sullivan and Ryan2009). Expatriates lodged nearly 40 per cent of applications.

The programme was open to applicants from January 2003 until December 2005 (thirty-five months). In 2003 and 2004, the RIRB received 2,573 and 2,539 applications, respectively (Residential Institutions Redress Board 2004: 8 and 2005a: 9). Then, in 2005, applications rose to 9,432, of which 3,700 arrived in the two weeks before the closing deadline of 15 December (Residential Institutions Redress Board 2006: 23). The enabling statute provided for late applications under ‘exceptional circumstances’ (‘Residential Institutions Redress Act’ 2002: paragraph 8.2). The courts compelled the RIRB to apply that provision broadly and the RIRB accepted 2,210 late applications. This included a 2009–2010 spike corresponding to the publication of the Commission of Inquiry’s final report and increasing awareness of the lax provisions for late applications (Residential Institutions Redress Board 2010, 2011). The RIRB petitioned the government to legislate the programme’s closure, which it did as of 17 September 2011.

Successful applicants must have experienced one or more of three types of interactional sexual, physical, and emotional abuse. Any act of sexual abuse constituted a basis for claim. Eligible physical abuse must have caused serious damage – explanatory examples include broken limbs, serious scarring, or long-term medical problems. Emotional abuse included sustained fear and verbal denigration and depersonalisation – damaging the survivor’s family relations by, for example, lying to them about their birth names. The programme also redressed structural injuries of wrongful neglect, including impediments to the survivor’s physical, mental, and emotional development such as malnutrition, inadequate education, and insufficient clothing and bedding. For claims of emotional abuse and wrongful neglect, applicants needed to show that abuse caused further physical or psychological harms. Survivors could also claim for ‘loss of opportunity’, which encompassed failing to provide the survivor with the legal minimum of education. Eligibility for loss of opportunity changed depending upon when the applicant was in residence. For example, a failure to receive secondary education became compensable only after free secondary education became available in 1967. Loss of opportunity also encompassed how care experiences damaged the survivors’ career.

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The RIRB assigned each application to a case officer. The officer assessed the application for completeness and checked to see if an interim payment was appropriate. Interim payments were available for applicants with dementia, a life-threatening disease or similar illness, and for elderly applicants who were born prior to 1 January 1931 (1 January 1933 after 2006). The maximum interim award was €10,000 and its value was deducted from any final award. Those applications were also prioritised for prompt resolution. The RIRB fast-tracked 3,284 applications; 2,886 due to age, 398 on medical or psychiatric grounds (Residential Institutions Redress Board 2017: 31).

The RIRB contacted any person or institution named in the application as an offender. Institutions (usually a religious order) were informed of the identity of the survivor, their claims, and the names of alleged offending persons associated with the institution. Respondent institutions were asked for the contact details of offending persons, who the RIRB would then notify. Named persons or institutions could request a copy of the redress application, excepting medical reports. Institutions would normally provide the RIRB with a written response, which became part of the case file. Alleged offenders and institutional representatives could request a hearing to contest or correct facts alleged in the application. Written responses were normal, but few attended interviews. The findings of the RIRB were confidential and inadmissible in court. Its processes had no legal consequences for offenders.

Most survivors needed care records to compile their application. The industrial schools were supposed to have kept a register of entry. Where those records were missing or inadequate, applicants needed other evidence of residence. Survivors could authorise their lawyers, the RIRB, or another party to search for relevant documents. In cases where no direct documentary evidence of residence was available, applicants could offer corroborating evidence, including memories of institutional personnel, the presence of other survivors, and/or swear an affidavit describing the period of residency.

Written testimony was the primary evidence of abuse, sometimes supplemented by oral testimony at an interview. The application form provided tables for listing injurious incidences (where and why they occurred and who committed them) along with any consequent damage suffered. However, most survivors supplied written narratives. Whatever the format, applicants needed to provide detailed information because the programme assessed severity according to the frequency and duration of abuse and whether different forms of abuse were combined. Claims for damage required medical evidence; therefore, most applications included reports from one or more medical professionals. These reports cost the RIRB around €6 million (McCarthy Reference McCarthy2016: 25). Reports needed to demonstrate that specific illnesses and sequelae were a consequence of experiences in an industrial school. The RIRB contracted medical advisors to review the survivor’s medical evidence. If the advisor disagreed with the applicant’s material, the RIRB would ask for a medical report from a different professional.

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This was a highly legalistic programme that reflects the influence of some survivors’ lawyers in its development. As related above, the redress programme originated as a response to legal pressure on the Laffoy/Ryan Commission. Those lawyers made influential submissions to the Compensation Advisory Committee (The Compensation Advisory Committee 2002: 7). In effect, the redress programme’s success depended upon its acceptance by lawyers. The scheme reflects their influence: the programme is a structured settlement process modelled on Irish civil law.

The complexity of the redress scheme led the RIRB to encourage applicants to retain legal counsel, which 98 per cent did (McCarthy Reference McCarthy2016: 10). Lawyers mediated most communications between the survivor, record-holding bodies, medical consultants, and the RIRB. The remuneration obtained by lawyers reflects the centrality of their role: the mean average legal fee paid by the RIRB per claim was €12,193Footnote ² per application, 20 per cent of the average award (Residential Institutions Redress Board 2017: 34). These costs reflect the lawyers’ ability to bill the publicly funded RIRB for any expenses, unconstrained by the usual limits of a private client’s willingness or ability to pay. Yet, the RIRB would only defray the survivor’s legal costs if the survivor accepted a settlement. Survivors who rejected the RIRB’s offer became responsible for their own legal costs – a noteworthy incentive.

Confidential services helped survivors access their records and search for family members. In addition to developing a unit within the Department of Education, the state contracted with Barnardos Ireland to provide the Origins Tracing Services. Origins was built on capacities that Barnardos had developed delivering post-adoption services. As a Protestant organisation, Barnardos had not operated a scheduled institution – it was not an offender. Origins provided records for around 5,000 redress applicants. Some applicants obtained records directly from the religious orders that ran the schools. However, most received their residential records from the Department of Education’s designated unit, via their lawyers. In the early 2000s, the department digitalised all its care records, creating a searchable database. To access their records, the survivor (or their agent) filed a Freedom of Information application asking for a ‘Report by School Number and Pupil Number’ with proof of identification, a privacy authorisation, and whatever information the applicant could provide about their family, their birth identity and date, and the dates of their institutional residence (IR Interview 11). If records were needed quickly, as was the case in the lead up to the programme’s closure in late 2005, the applicant could obtain a provisional indication of residence. In the period 2005–2006, both Origins and the department developed lengthy waiting lists.

In September 2000, the Department of Health established the National Counselling Service for survivors, employing approximately sixty counsellors by November 2001 (The Compensation Advisory Committee 2002: 65). The Catholic Church also provided counselling through its Faoiseamh service, which became Towards Healing in 2011. These services combined direct counselling, by phone or in person, with funding for external therapy. Survivor-led organisations such as One in Four, Aislinn, and Right of Place also offered counselling. In 2001, the state set up a National Office for Victims of Abuse to act as an umbrella organisation to assist survivors, and co-ordinate the work of survivor groups (Department of Education and Skills 2010: 112). However, few groups joined and the office closed in 2006. Funding for survivor support groups continued and totalled around €42 million by the end of 2015 (McCarthy Reference McCarthy2016: 36). The RIRB actively engaged with survivor groups, holding regular consultation meetings. When asked, workers from support agencies attended the board’s interviews with survivors and provided advice and logistical support. For example, Right of Place operated a bed and breakfast facility for survivors who travelled to Cork to meet with lawyers or to attend an interview or settlement conference. The RIRB arranged for Finglas Money Advice and Budgeting Service to provide financial advice to applicants. After 2008, applicants were also referred to Ireland’s Money Advice and Budgeting Service.

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Applications were assessed by a panel of two board members. The composition of the panel for each application was chosen by lot to help ensure consistency. Panellists held evidentiary interviews with 3,325 applicants – 20 per cent. Interviews were required in any case requiring verbal testimony or to clarify conflicting evidence. An applicant might also request an interview to testify in person. In a small number of cases, and only with the permission of the board, alleged offenders cross-examined applicants. Interviews averaged around two hours in length. Most were held in the RIRB’s offices in southern Dublin. These offices were well-served by public transport and pleasantly mundane in appearance. The RIRB tried to keep interviews informal, although lawyers for the RIRB and the survivor usually attended. The RIRB defrayed the attendance costs for the applicant, counsel, and any support person. Panellists travelled to hold interviews with ill or very elderly applicants. In some cases, the RIRB held interviews in prisons and in psychiatric hospitals; however, this was not the preferred option and the RIRB worked with prisons to enable applicants to attend the RIRB’s more hospitable offices. RIRB held interviews in the United Kingdom for applicants who could not travel to Ireland.

The panel’s first task was to establish the facts of the application. Here, the standard of evidence was a loose plausibility test: if the injuries described by the application were plausible, the RIRB did not interrogate them further (IR Interview 3). However, if the file contained disconfirming evidence, or parts of the application were disputed, the test became the balance of probability and the case would require an evidentiary interview. Panellists used the standards of the day – acts had to be illegal or against policy if they were to be redressable.

Settlement values depended upon both the experience of abuse and the damage caused by that abuse. Panellists assessed the evidence using a fourfold taxonomy of injuries, looking for evidence of abuse, medically verified physical/psychiatric illness, psycho-social damage, and loss of opportunity. Having assessed the evidence, the two-member panel would agree on a provisional numerical score for each component using the ranges indicated in Appendix 3.1. Having scored each component, panellists then tallied the component scores to produce an overall total, using the matrix in Appendix 3.2 to convert the application’s score into euros. The panellists would consider the result. If they thought it inappropriate, they might recalculate the provisional score or, in exceptional cases (fewer than ten), add extra monies up to the value of 20 per cent.

With a provisional value in hand, the RIRB would call a settlement meeting. Settlement meetings were conducted between counsel for the RIRB and the survivor. Although the survivor would usually be present at the office, they were rarely part of the actual negotiations, which were handled by their lawyer. As with evidentiary interviews, the RIRB was responsible for expenses. Originally, the meeting began with the board’s lawyer explaining their provisional assessment. However, after consultation with survivor groups counsel for the applicant were permitted to open negotiations. Negotiations could, and often did, change the provisional assessment, leading to a changed payment offer (IR Interview 3). Most meetings ended with an agreed award value. Once that was complete, the RIRB formally notified the applicant of their settlement offer. Applicants had twenty-eight days to accept or decline the offer or appeal to the Redress Review Committee (appointed by the minister for education). By 2014, the committee had made 571 awards following a review, which increased the original award by an average of 39 per cent (McCarthy Reference McCarthy2016: 26). Applicants could also appeal to the ordinary courts on procedural matters.

Funding for awards came from the Ministry of Education. That funding was not capped. The minister of education approved all awards, but that was a formality; the minister approved RIRB’s every recommendation. Awards were not taxable as income, nor were they intended to affect the survivors’ eligibility for any means-tested benefit. The Act empowered the RIRB to pay the settlement in instalments or place the funds in trust with the courts if they judged the applicant incapable of managing the money.

One interviewee estimated an average (mean) processing time as between eighteen to twenty-four months (Interview 3). However, this depended on the time of submission. In the months leading up to the end of 2005, the programme developed a backlog that took several years to clear. The time it took also depended upon how complicated the application was, the nature of the claims involved, and the evidence available. The programme settled 90 per cent of received applications by 2010. By September 2015, the few remaining cases were no longer in contact with the RIRB. Unable to either pay a settlement or get the claimant to withdraw their application, the RIRB sought and obtained permission from the courts to close those files unilaterally. The last settlements were paid in 2016. Seventeen applicants rejected their awards. There were 1,069 applications withdrawn by applicants, refused by the RIRB, or that resulted in a zero-value award. The average payment was €62,250: 21 per cent of the €300,000 maximum.Footnote ³ The total value of all settlements was €970 million. Legal fees for applicants cost the programme €192.9 million and were paid to 991 legal firms (McCarthy Reference McCarthy2016: 31). Administrative expenses were €69 million (€4,144 per applicant), including internal legal costs. The €1.52 billion total cost of the redress programme was over 600 per cent of the original budget estimate of €250 million.

As a last note, all of the RIRB’s proceedings, including information about awards, were private. The 2002 Act prohibits the publication of ‘any information concerning an application or an award’ in a way that would permit the identification of a person or institution, including survivors (‘Residential Institutions Redress Act’ 2002: §28). This was understood by many survivors to prohibit them from speaking publicly about their experience with the redress programme (Ring Reference Ring2017: 97). However, there have been no prosecutions relating to this provision and it is apparently a legal dead letter.

4.3 Caranua

The Laffoy/Ryan Commission published its final report in 2009. As Ireland suffered through the global financial crisis, the publicity surrounding the report cast light on the RIRB’s burgeoning budgetary exorbitance. Those significant cost overruns triggered vociferous criticism of the 2003 indemnity agreement with religious organisations. Recall that religious organisations had paid €128 million towards the redress scheme, which was estimated at the time to be 50 per cent of the redress programme’s costs. In 2009, the Irish government negotiated an additional €110 millionFootnote ⁴ from religious orders to endow an ancillary programme. Caranua would supersede an existing fund of €12.7 million providing educational grants to survivors. Unlike the RIRB, Caranua’s funding would be capped, and the programme would close when it exhausted its endowment.

Caranua opened in 2014. It was administratively independent, although the minister of education appointed the nine-member board, four of which were survivors. The board set administrative and staffing policy. In early 2017, Caranua had approximately twenty-three staff, of which eleven were advisors working directly with applicants. This proved inadequate, leading to ‘appalling’ backlogs (Committee of Public Accounts 2017). Most staff had social work and social care backgrounds and were hired directly: they were not public servant secondments (IR Interview 4). Understaffing and the use of temporary contractors led to high levels of turnover between 2014 and 2016.

There was a two-stage application process. First, the survivor applied to verify their eligibility. Eligible survivors must have received a settlement from the RIRB. Caranua had a list of successful claimants; therefore, the initial assessment merely cross-referenced the applicant with that list. The process was simple and quick. Caranua received 6,646 applications to verify eligibility, 6,158 would receive some funding (Caranua 2020a: 17, 3).

The second stage was much more complicated. Caranua sought to assess survivors’ needs holistically and match them with appropriate services. Caranua provided direct funding in three different areas: health and well-being; housing support; and education, learning, and development. As examples, health and well-being services might include optometry or dental work; housing support could include disability modifications, repairs, and home improvements; and education included fees for tertiary education and training. The programme did not fund services available through the public system; therefore, Caranua’s advisors often helped facilitate survivors’ engagement with existing services. Successful applicants had to explain how their application related to injuries that they had experienced while in care. Then an advisor would assess if the service was appropriate to the survivor’s needs and reasonable in terms of cost (Caranua 2016: 11). Where relevant (as in medical services) applications required a professional recommendation and/or a cost quote. Survivors could make multiple applications, repeating the comprehensive assessment each time. Most of Caranua’s money was spent on housing support (e.g. repairs and home improvements), which consumed slightly less than 70 per cent of disbursed funds (Caranua c2019: 3). This created inequities between homeowning survivors and those who were tenants or homeless. Education was the least used category, with grants of around €1.4 million. In total, Caranua paid €97,425,226 million in support for applicants (Caranua c2019: 3), €13,492,282 million was spent on administration (Caranua c2019: 3).

Caranua was a troubled organisation opposed by a vocal group of survivors, many of whom wished to receive the monies directly from the churches (and not pay administrators’ salaries). Conflicts of interest emerged as board members, who were survivors, were also potential beneficiaries of the programme. Some board members became advocates for certain applicants (Interview 4). The programme was launched without any operative regulations and, consequently, the board developed its policy and procedures while in progress, which led to false starts and inconsistencies. Although the programme published guidelines on its website, programme staff were reported to use secret policy documents (Reclaiming Self 2017: Appendix 1). Significant policy changes included expanding the programme to include household goods, funeral costs, and family tracing. In 2016, applicants were given a lifetime limit of €15,000 to prevent a minority of survivors from consuming a disproportionate amount of funding. Continuing criticism led to a major review and in 2017 the government replaced several board members. In 2018, two of the new members left the board while publicly criticising its operations as inefficient and uncaring (Holland Reference Holland2018). The programme closed to new applicants on 1 August 2018 and final payments were made in 2020.

4.4 Magdalene Laundries

The third Irish programme emerged as a reaction to adverse findings in a 2011 UN report (UN Committee Against Torture 2011). Operated by religious orders, Ireland’s Magdalene laundries were workhouses for women. In some cases, the laundries were used as remand facilities (McCarthy Reference McCarthy2010; Finnegan Reference Finnegan2001). All residents were women, and most were young – the median age was twenty (McAleese Reference McAleese2012: xiii). Many residents experienced the laundry as a prison in which they were forced to labour in poor conditions (Smith et al. Reference Smith, O’Rourke, Hill and McGettrick2013: 9). Because the laundries did not admit children, single mothers had to relinquish their children, often to an industrial school.

Ireland responded to the UN’s 2011 report by empanelling an Inter-Departmental Committee chaired by (former) Senator Martin McAleese. The committee reported that approximately 11,198 women resided in a laundry between 1922 and mid-1990s (McAleese Reference McAleese2012: 161). Taoiseach Edna Kenny responded to the committee’s report with a public apology to all Magdalene survivors on 19 February 2013 (Kenny Reference Kenny2013). Kenny’s speech announced that Justice John Quirke would head a commission to design a monetary redress scheme. Quirke’s remit reflected criticisms of the RIRB’s capture by the legal profession. The terms of reference specified that redress funds must be ‘directed only to the benefit of eligible applicants’ and prohibited funding for ‘legal fees and expenses’ (Quirke Reference Quirke2013: 1). Quirke was to report within three months. During that period, survivors could lodge an expression of interest so that they would be informed when the programme opened.

The Magdalene redress programme opened in June 2013 and remains open at the time of writing. The Restorative Justice Implementation Team delivers the programme. Originally housed within the Department of Justice and Equality, the team moved to the Department of Children, Equality, Disability, Integration and Youth in 2020. Its budget is authorised by a vote of the Oireachtas that provides the programme some financial security against intra-ministerial reprioritisation. Operating from a Dublin office, the team was staffed by around nine seconded civil servants. It was initially entirely female, matching the gender profile of the applicants. The team advertised the programme through survivor groups, the departmental website, and Irish embassies. The programme received some media attention; however, the contrast with the high-profile RIRB is clear: before 2018, the Magdalene programme did not have a dedicated website, online information was housed on a subordinate page on a departmental website. Team members did not regularly meet with survivor groups. The programme did not produce annual reports or newsletters, and detailed procedural guidelines were only made public in 2018.

Quirke’s report proposes two bases for monetary payment – residence and unpaid forced labour. Valid applications must satisfy four conditions. Applicants must apply; be alive on 19 February 2013 – the date of Kenny’s apology; provide personal identification; and furnish evidence of residence at a scheduled institution. Posthumous claims are possible if the survivor lodged an application prior to their death. Originally, eligible applicants must have resided in one of ten Magdalene laundries or two ‘training schools’; however, a supplementary process for fourteen further institutions was added after the Ombudsman published a critical programme review (Office of the Ombudsman 2017).

Opened in June 2013, the rate of applications slowed following the first year intake of 756 applications.Footnote ⁵ Thirty-one were received in the next year and a further twenty the year after. By December 2016, there had been 830 applications. After 2018, the scheme had two streams, the original and the supplementary processes, and fifty-two claims were reassigned to the supplemental process and a review of previously denied claims began. As of 13 December 2019, the original programme had 791 applications and the supplemental process had 115 claims (The Restorative Justice Implementation Team 2021).

Each application was assigned to a case worker, who conducted research and managed contact with the applicant (usually by phone). The application asked for copies of the survivor’s birth certificate, photographic identification, a passport photograph, and their Personal Public Service Number. Survivors were also asked to contact religious orders for documentary evidence of residence. The laundry’s register of entry should record the date, name, and age of the survivor at the time of entry and, sometimes, a release date. For around 50 per cent of applicants, institutional records were insufficient to establish the duration of residence (IR Interview 8). The team divided those applications into three categories (Office of the Ombudsman 2017: 39). Category 1 had a start date of residency, but insufficient information to determine the length of stay. In Category 2 there was evidence of residence, but neither a beginning nor end date. Category 3 had no documentary evidence of residence. Looking more broadly, the team would explore information from multiple sources, including voting, health, education, social insurance, and employment records (IR Interview 8). In cases where documents proved inadequate, the team accepted witness statements and some applicants were invited to informal interviews. Beginning in August 2014, two team members conducted these interviews and produced a report. As of mid-2017, there had been seventy-eight interviews, a little more than 10 per cent of the total.

Applications failed when there was no evidence of residence in a scheduled institution. But that requirement was only publicised in December 2013, after the team had processed several applications. This was one of several gaps between programme design and implementation. The Magdalene laundries were often part of large religious complexes that included several institutions, with people moving around the complex according to the practical demands of the moment. A survivor who, for example, resided in an industrial school and laboured in a laundry might be denied redress. The Ombudsman criticised the post hoc decision to make residence necessary for eligibility (Office of the Ombudsman 2017: 7). Compounding this unfairness, concerns with survivors’ receiving redress twice – from both the RIRB and the Magdalene programme – led policymakers to exclude laundries that had been scheduled in the RIRB (Office of the Ombudsman 2017: 8). However, the conditions of eligibility for the two programmes differ significantly. Unlike the RIRB, the Magdalene programme did not require evidence of abuse or neglect. Therefore, survivors who could not, or did not, tell the RIRB that they were abused were excluded if they had resided and/or worked in an RIRB scheduled laundry. As previously stated, the supplementary programme that started in 2018 added fourteen institutions. It also permitted applications by those who worked in a laundry without having resided in one.

Finally, there were serious concerns regarding the quality of the investigation into cases where there was no documentary evidence of residence. Despite provisions for interviews, in the judgment of the Ombudsman, the programme

Personal testimony was not given appropriate weight. While public statements indicated that the survivors’ testimony would be accepted as true, in many cases, testimony that lacked documentary support was rejected by the programme (IR Interview 2; Office of the Ombudsman 2017: 40). Responding to this criticism, in 2018, a barrister, Mary O’Toole, was appointed to review all the cases. She opened a reinvestigation into 214 cases (Ó Fátharta 2016).

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To receive a redress payment the applicant must waive all claims against the state.Footnote ⁶ Applicants were eligible for €500 (plus VAT) for legal advice at the point of settlement. The modest provision reflects criticism of RIRB’s legal costs. Indeed, the Quirke Commission had difficulties getting the government to agree to fund any legal advice (IR Interview 10). While applicants could self-fund legal representation earlier in the application process, for the most part, ‘[t]he only time a solicitor is involved, with the Magdalene[s], is when they’re actually at the end of the process and they are signing the waiver’ (IR Interview 9). The timing is important. Funded legal advice was only available after the applicant receives the final payment offer. By that point they would have already agreed to the provisional offer and the lawyer’s task was to check that the survivor understood the consequences of that decision.

There was no specific provision for counselling associated with the scheme. Redress responded to the experience of labour in the laundries, and it was not assumed that participants were thereby traumatised (IR Interview 8). Some survivor groups offered counselling support (IR Interview 9) and any survivor could contact the National Counselling Service; however, there was no extra funding to counsel survivors participating in the scheme. Moreover, the advanced age of many survivors created problems. Unsupported survivors who did not have the capacity to sign legal documents were, in the words of the Ombudsman, ‘forgotten’ (Office of the Ombudsman 2017: 9). Several women died before they were made ‘Wards of Court’ and legally enabled to proceed.

The Quirke report advocates for a dedicated unit to assist Magdalene survivors in perpetuity (Quirke Reference Quirke2013: 45). That never eventuated. The Restorative Justice Team was the primary support, providing personal and logistical support, including records access. The team helped applicants complete their applications, usually by telephone. When survivors received written material from the programme, they could call the team for explanations or seek ad hoc support elsewhere. Some applicants obtained assistance from the Citizens Advice Bureau, either by phone or in person. However, the bureau did not offer a specific service for Magdalene laundry survivors. Although a network of survivor-support agencies volunteered support, none of these organisations received specific funding. Some interviewees observed that the support provided was inadequate (IR Interviews 2 & 9).

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Case workers with the team decided payment values. Their decisions were approved or revised by a senior officer within the team, and then a manager. The offer was then made to the applicant on a provisional basis. If the applicant agreed, the team issued a formal offer. There was no negotiation, although an applicant who disagreed with the offer could provide further information or appeal. The first level of appeal was inside the department, but outside the team. If the applicant remained unsatisfied, they could appeal to the Ombudsman and/or to the ordinary courts.

Appendix 3.3 describes how claims were assessed for both time in residence and the experience of coerced labour. The redress payments were separate, but not severable – all validated applicants received both payments and the values of both were set by the time they spent living in the institution. The lowest available payment was €11,500 and the highest €100,000. However, policymakers built in protection for survivors that they thought were vulnerable because of their gender, age, (mis)education, and illness (Quirke Reference Quirke2013: 7; IR Interview 5; IR Interview 8). To ensure continuing benefits from the programme, the team converted any lump sum monies in excess of €50,000 to a weekly pension payable for life. Further, because unpaid labour in the laundries did not accrue credit towards Ireland’s contributory pension, the programme provided those who were fifty years or older a pension starting at €100 per week that increased in value each year until the age of sixty-five at which point they move to a value commensurate with the top standard state contributory pension, worth €243.30 per week in 2018. Once settlement was agreed, the pension was payable from 1 August 2013 until the applicant’s death. Lump sum payments are tax exempt and not treated as income, but the contributory pension is reduced by the value of any primary benefits such as housing allowances or similar public support received by the survivor (Shatter Reference Shatter2013). And because the programme is designed to provide stable lifetime support, eligible survivors can access a range of medical and other services through special statutory provision. In another example of a gap between programme design and implementation, the provision of augmented medical services was delayed until 2015. Moreover, the augmented access is less than what Quirke recommended.

The programme aimed to operate as quickly as possible. An application submitted with sufficient documentary evidence of residence could result in a payment offer within weeks (IR Interview 8). By June 2014, the programme had made 369 payments – nearly half the eventual total.Footnote ⁷ The programme paid 164 claims the next year and 91 in the following. By December 2017 it had made 684 payments. As of November 2020, the original programme had received 791 applications and paid 719 claims, while the supplemental process had received 115 claims and paid 78 (Department of Children 2020). By 2020, €30.128 million had been paid to 788 survivors, a mean average of €38,234.

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The three Irish redress programmes are a study in contrasts. The RIRB’s massive budgetary overrun constrained subsequent policymakers to design programmes that would avoid similar problems. Caruana’s funding was capped and provided by religious orders. The Magdalene programme worked with a short (until 2017) schedule of twelve institutions and limited lump sum payments to a third of the RIRB’s maximum figure, resulting in a mean average payment that was a little more than half the value of the RIRB’s. The comparative difference in legal fees is even sharper, the €500 maximum in the Magdalene programme is 4 per cent of the RIRB’s €12,193 average. Caranua did not pay for legal fees. Interestingly, one of the Australian programmes considered in the next chapter worked in a very similar manner to Caranua, but largely without criticism. However, the Australians would anticipate the Irish lesson in budgetary exorbitance by capping redress funding.

5.1 Introduction

This chapter explores three Australian redress programmes. Queensland’s Forde Foundation is a small in-kind programme similar to Ireland’s Caranua and was established prior to the more compensatory Queensland Redress. The latter half of the chapter addresses Western Australia’s complicated and troubled Redress WA.

5.2 The Forde Foundation

The 1997 publication of Bringing Them Home (Wilson and Dodson Reference Wilson and Dodson1997) highlighted the roles played by of out-of-home care in the genocide of Australia’s Indigenous Stolen Generations and spurred demands for monetary redress. In response, Queensland established the Commission of Inquiry into Abuse of Children in Queensland Institutions in 1998, known as the Forde Inquiry after its chair Leneen Forde. Finding systemic abuse in out-of-home care, the Forde Report recommended that Queensland establish ‘principles of compensation in dialogue with victims of institutional abuse and strike a balance between individual monetary compensation and provision of services’ (Forde Reference Forde1999: xix).

The Forde Foundation was Queensland’s first response to that recommendation. Set up in 2000 as a perpetual fund, Queensland supplied its capital funding of AUD$4.15 million. The foundation continues to be governed by a government-appointed board whose ten members serve three-year terms. The board attempted to recruit survivors as members, but confronted conflicts of interest (AU Interview 2). The foundation’s three executive positions are supported by state funding. The Public Trustee administers the capital fund and between 2000 and 2019, the foundation distributed over 5,449 grants valued at around AUD$3.16 million (Forde Foundation 2019: 6).

All applicants must be registered with the foundation. Registrants must have been wards of the Queensland State, under its guardianship, or resided as a child in a Queensland institution. Registration is usually straightforward, supported by public records and facilitated by a community agency – Lotus Place (discussed later). There were 2,158 registered survivors in November 2021 (Private Communication from Eslynn Mauritz, Executive Officer of The Forde Foundation, 8 November 2021).

The foundation’s executive officer manages the funding application process. On average, the board receives around 1,000 applications per year, although numbers are increasing. As survivors age, they are more likely to seek more expensive support and, since the foundation is open to anyone who was in care in Queensland, the number of registrants grows every year (Terry Sullivan in ‘Official Committee Hansard’ 2009a: CA6). The foundation gives informal priority to those who were in institutional care. There is no limit to the number of applications by any survivor, but they are now restricted to a maximum of AUD$5,000 in funding over five years.

There are three categories of application: dental, health and well-being, and ‘personal development’, which usually concerns education. The foundation will not fund publicly available goods or services, or those otherwise supported by private insurance. Monies are normally disbursed directly to providers. The foundation dispenses approximately AUD$50,000 each quarter, but this varies slightly from year to year to ensure the foundation’s’ perpetual sustainability. Funding decisions are made by a majority vote at the board’s quarterly meetings. Assessment is supposed to be holistic – including information available about the applicant’s life and previous choices, including the content and results of previous awards. However, as each meeting needs to consider around 250 substantial applications, the executive officer generates a short synopsis of each for the board to review (AU Interview 2). In general, dental services are simply approved: other applications receive greater scrutiny (AU Interview 2).

5.3 Queensland Redress

The Forde Foundation was (and is) a modest programme that spends around AUD$200,000 per year. Pressure for more substantive redress mounted throughout the 2000s (AU Interview 3). On 31 May 2007, Queensland announced a AUD$100 million programme for survivors of institutions investigated by the Forde Inquiry (Colvin Reference Colvin2007). A short (June–August) consultation process preceded the programme’s opening on 1 October 2007.

Queensland Redress began with a six-person team called Redress Services (AU Interview 2). The team originally expected 5,000–6,000 applications (Department of Communities 2009: 1). Applications came in quickly, eventually numbering 10,218 (Government of Queensland c2014: 2). Recruitment through secondments increased the staff to around fifty archivists, administrative officers, and project managers. The need to staff positions quickly, with a limited pool of available secondments, led to staffing compromises and high levels of turnover (AU Interview 2). The Department of Communities housed Redress Services, paying approximately AUD$12.3 million in administrative costs.Footnote ¹ The department hosted a website (now defunct) with useful information, including the application form, some ‘Frequently Asked Questions’, and the Application Guidelines (Department of Communities 2008). The responsible minister published semi-regular media releases.

Redress Services served as the programme’s back office. The front of shop was Brisbane’s Lotus Place.Footnote ² Lotus Place is a community centre offering counselling, support for records access and, during the programme, assistance in completing redress applications (AU Interview 1). The Forde Foundation was (and is) collocated at Lotus Place, as is the Aftercare Resource CentreFootnote ³ and, therefore, many Brisbane-based survivors were familiar with Lotus Place before Queensland Redress began, and the staff were equally experienced working with survivors. It is generally held that the work of Lotus Place as a one-stop ‘portal providing consistent information and assisting people [was] outstandingly successful’ (Robyn Eltherington in ‘Official Committee Hansard’ 2009a: CA75). However, the number of applicants stretched Lotus Place’s resources. Lotus Place helped ‘over’ 2,000 applicants for redress, around 20 per cent of the total (Karyn Walsh in ‘Official Committee Hansard’ 2009a: CA14). The converse is that 80 per cent either had no assistance or used non-funded services such as the Aboriginal and Torres Strait Islander Legal Service. Rural and out-of-state applicants confronted significant accessibility challenges (Senate Community Affairs References Committee 2009: 89).

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The application deadline was originally 30 June 2008, this was extended to 30 September 2008. Around 3,000 applications were received in that three-month period (Mark Francis in ‘Official Committee Hansard’ 2009a: CA71). Received applications were assessed for completeness and survivors were contacted if material was clearly missing, but survivors could not amend their application after 28 February 2009. The programme accepted information in any format and the programme needed an upgraded information management system to manage the complexity of the material it received (AU Interview 2). The brevity of the twelve-month open period means that there are no records of the application rate, although one interviewee suggested that applications arrived steadily and almost immediately as survivor networks spread information about the scheme (AU Interview 2).

Eligibility for Queensland Redress required the applicant to have resided in one of the 159 institutions addressed by the Forde Report. This closed schedule of institutions created inequities, including racial discrimination. Legally, non-Indigenous children could only be placed in licensed institutions; however, some Indigenous children were placed in unlicensed institutions excluded from the Forde Inquiry and the resulting redress programme (AU Interview 3). Still, at the midpoint of the programme, June 2008, 53 per cent of the then 6,655 applicants identified as Indigenous (Lindy Nelson-Carr in ‘Child Safety’ 2008: 59).

Queensland Redress had two pathways, Level 1 and 2. Level 1 provided a uniform payment of AUD$7,000.Footnote ⁴ Survivors were eligible for a Level 1 payment if they had resided in a scheduled institution, were eighteen years or older on 31 December 1999, and had ‘experienced institutional abuse or neglect’ while in care (Department of Communities 2008: 3). The programme had five categories of abuse: psychological or emotional abuse, physical abuse, sexual abuse, neglect, and ‘systems abuse’, the last referring to structurally injurious practices (Forde Reference Forde1999: iv–v, 12). These categories appeared on the application form as tick box options. To be eligible for a Level 1 payment, applicants needed only to tick a box that indicated they had suffered some form of abuse. Applicants were asked to name the institution(s) in which abuse occurred, then Redress Services would search for evidence of their residence. Residence could have been as short as a single day, but the programme excluded those who were in care during their first year of life only. Applicants needed to provide certified proof of identity (there were some multiple applications) and to authorise Redress Services to access relevant personal records. The information in the application form was confidential.

Care leavers could apply to Level 2 in their initial application or when notified of their Level 1 eligibility. Just under half of applicants (4,802) applied for a Level 1 settlement only. Level 2 responded to more serious injuries, including consequential harms, and required applicants to describe their injurious experiences in detail. The application form provided a short space to describe when injuries occurred and their duration, if the incident was reported, whether the applicant experience(d) consequential damages (the form suggests twenty-nine different harms), and whether medical treatment was sought or received (Department of Communities c2007: 5–6). Applicants were encouraged to submit any relevant documentation, such as police reports or medical statements. Redress Services did not provide funding for professional medical reports or other evidence of injury. This advantaged those who already had medical reports or could pay for them (AU Interview 1). However, most survivors simply described their experience in their own words. Applicants were not told how their information would be used: the assessment policy for Level 2 applications was not developed until after the programme opened to applications. A total of 5,416 survivors applied for a Level 2 payment (Royal Commission into Institutional Responses to Child Sexual Abuse 2015b: 118).

A total of 15 per cent of applications to Level 1 were prioritised due to age or illness (Mark Francis in ‘Official Committee Hansard’ 2009a: CA71). The programme did not accept posthumous applications, however, it provided AUD$5,000 towards the funeral expenses of those who would have been eligible. As many as 901 applications (9 per cent) were received from out-of-state survivors, but less than 1 per cent of applicants were overseas (Mark Francis in ‘Official Committee Hansard’ 2009a: CA78–79). Incarcerated applicants offered a particular challenge. Because the programme accepted postal applications only, Redress Services set up an agreed confidential information system in which letters sent by inmates to the confidential postal address within the Department of Communities would not be read by prison staff. Payments for incarcerated applicants were held in a private trust until their release (AU Interview 3). Although prisoners are not permitted to have cash in prison, they might use the monies outside the prison for purposes within, such as bribery. This also helped imprisoned survivors avoid extortion.

All applications were assessed for a Level 1 payment. Because applicants who indicated an injury on the form were generally believed, Level 1 assessment primarily concerned institutional residence with records provided either by the applicant or sought by Redress Services. Only when no documentary evidence could be found did Redress Services revert to applicants for more information or a statutory declaration (AU Interview 2). Because Level 1 was administratively simple, on average, assessment took about one month (AU Interview 2).

Level 2 assessment began in August 2008, after Level 1 was complete and the programme knew how much remained from the AUD$100 million fund (Senate Community Affairs References Committee 2009: 39). The process required more information, administrative resources, and time. The secretariat compiled a summary of each case file. Applications were then assessed by two members of a six-person panel of contracted lawyers. Those panellists did not conduct interviews (Department of Communities 2009: 3). They matched testimony from the application with evidence available from the Forde Report about the institution. In general, if evidence of residence was available, the programme accepted testimony that matched patterns described in the report (AU Interview 3). The panel then scored the application using a matrix (Appendix 3.3) that divided assessment into seven discrete analyses, giving greater weight to in-care experiences. Once each component was scored, the panellists aggregated the points to assign the application to one of five categories of severity ranging from a null award to ‘very extreme’ (see Table 5.1). The panel chair read the final assessment and verified the outcome.

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Survivors accessed their records through a Freedom of Information process. Expert staff at Lotus Place provided applicants with support and guidance. Responding to the Forde Report, Queensland had digitised most relevant records. In 2001, Queensland also published Missing Pieces, a directory of the type and location of records held by public and religious bodies (Queensland Department of Families 2001). Those steps helped applicants compile their applications and facilitated cross-referencing. Around 80 per cent of applications were verified using departmental records (AU Interview 2). For the others, Redress Services searched for auxiliary records, such as school registers, and was flexible about the evidence it used (AU Interview 1). Moreover, during the Forde Inquiry, the state developed a ten-person ‘Administrative Release Team’ to respond to records requests (AU Interview 3). This team continued to help survivors access their personal records throughout the 2000s. This meant that a digitalised records-access infrastructure, with experienced staff, was available when the redress programme began.

Survivors confronted challenges in obtaining records nonetheless. Many records had been destroyed and what remained often lacked relevant information. Secrecy concerns surrounding adoption often meant that care staff tried to expunge the child’s relationship with their birth parents from documents. Those concerns also inhibited carers from creating and developing personal records. When relevant information was found, agencies redacted information that was not personal to the survivor. Rebecca Ketton of Aftercare observed ‘that often significant amounts of information is blacked out or crossed out with thick black pen. This can be quite upsetting …’ (‘Official Committee Hansard’ 2009a: CA39). Redacted information could affect a redress application, if, for example, an offender’s name was withheld. Files often used language hurtful to survivors and many survivors needed counselling support when accessing records (AU Interview 4). Specialist counselling was provided by Aftercare, an initiative of Relationships Australia. Another result of the Forde Inquiry, Aftercare operated a two-person branch in Lotus Place with in-person and telephone counselling. Aftercare also brokered counselling, both privately and through Relationships Australia offices, of which there were forty in 2009. When Queensland Redress ended in 2009, Aftercare had 860 clients, a 200 per cent increase over the term of the programme (Rebecca Ketton in ‘Official Committee Hansard’ 2009a: CA42).

Queensland Redress did not pay for legal support during the application process. However, because the programme required survivors to waive all rights against the state for injuries suffered in care, survivors were instructed to obtain legal advice at the point of settlement. Applicants were provided with a list of solicitors willing to provide advice for a set fee (Bligh Reference Bligh2010). Redress Services paid those lawyers directly, at a total cost of AUD$3,468,750 (Royal Commission into Institutional Responses to Child Sexual Abuse 2015b: 118).Footnote ⁵ The waiver only affected the survivor’s rights against Queensland. Financial advice was available to all applicants who accepted a payment. The programme would pay a set fee for an appointment with a financial advisor (Department of Communities 2008). This provision was not well utilised. One interviewee said, ‘We were always really clear about the legal fees and financial advice, but no one took us up on financial advice …’ (AU Interview 2). Kathy Daly reports that no applicant used the financial advice service (Daly Reference Daly2014: 140).

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In December 2007, applicants began to be notified of their eligibility for Level 1 and sent the abovementioned waiver form. By 13 November 2008, over 3,270 Level 1 payments had been made and by April 2009 the total was over 6,000 – respectively 46 and 84 percent of the 7,168 final total (Royal Commission into Institutional Responses to Child Sexual Abuse 2015b: 575). As many as 285 Level 1 payments went unclaimed, mostly by applicants with no known address. Survivors could appeal judgments to the Ombudsman or to the ordinary courts. That review only pertained to the question of institutional residence, never the actual assessment.

All successful Level 2 applicants were notified by letter in August 2009. This synchronised process was encouraged by the funding model in which eligible Level 2 applicants shared the AUD$45,349,000 remaining from the original AUD$100 million (Government of Queensland c2014). However, it also avoided the inequity of some applicants receiving settlements before others.

Every applicant in each of the Level 2’s four categories of severity was paid the same amount. The mean average payment was AUD$12,987, added to the AUD$7,000 for Level 1. Assessment information and monetary values were private; however, survivors were free to discuss their settlements publicly. Redress monies were not treated as income when assessing benefits and taxation. Towards the end of the programme, an issue emerged with Medicare, Queensland’s public health provider. Many survivors obtained redress for injuries for which they had previously received subsidised medical care, and Medicare began processes to recover its treatment costs from redress recipients. To protect survivors, Queensland paid Medicare a lump sum of AUD$500,000 to cover those repayments.

5.4 Redress WA

On 17 December 2007, two months after Queensland Redress opened to applications, Western Australia announced a programme providing a Level 1 payment of AUD$10,000 and Level 2 payments up to AUD$80,000. Redress WA’s headline funding of AUD$114 million also looked larger than Queensland’s but it would need to pay the programme’s operational expenses, which would be around AUD$25 million. The programme opened on 1 May 2008 and closed to new applications on 30 April 2009. Then, on 26 June 2009, the government restructured the programme to create four tiers of payment with a maximum of AUD$45,000 (Royal Commission into Institutional Responses to Child Sexual Abuse 2014c: 64). Partly a response to the unfolding global financial crisis, the AUD$45,000 maximum better communicated what survivors could reasonably expect, but the change undermined the programme’s credibility and led to vociferous criticism (Green et al. Reference Green, MacKenzie, Leeuwenburg and Watts2013: 2; Pearson, Minty, and Portelli Reference Pearson, Minty and Portelli2015: 7).

The post hoc change to the payment schedule reflected the fact that Redress WA was ‘introduced in an awful hurry’ and ‘with no infrastructure in place’. ‘It wasn’t well planned. It wasn’t planned at all’ (AU Interview 6). In 2007, state policymakers held two consultation meetings, but the development process lacked meaningful stakeholder involvement (Kimberley Community Legal Services c2012: 5; AU Interview 6). Located in the (relatively new) Department of Communities, when it opened in May 2008, Redress WA had fewer than ten staff. By 2010, the complement was around 130, yet the programme was never fully staffed. Most were seconded civil servants, but the demand for staff led to staffing compromises and the use of short-term contractors, contributing to high levels of turnover (AU Interview 8). This, in turn, led to administrative delays and high workloads that further aggravated staffing problems. Work was also hindered by a ‘clumsy and slow’ data management system (Western Australian Department for Communities Reference Rockc2012: 13). Delays frustrated claimants, leading to more complaints and hostility from many survivors (Rock Reference Rockc2012: 8). Redress WA did not have a publicly accessible office and staff were anonymised to shield them from media criticism and security threats. In the opinion of one interviewee, that made them ‘invisible’, with detrimental consequences for survivors (AU Interview 6).

Redress WA’s publicity strategy developed over time (Redress WA Reference Redress2008b). Originally, the programme expected 9,689 eligible applications (Redress WA Reference Redress2008b: 7). But the programme initially received much fewer than expected (only 328 applications by 31 August 2008) and the programme revised its publicity efforts, with more advertising (Rock Reference Rock2008: 5; Redress WA Reference Redress2008b: 11). Redress WA operated a website with useful information about the application process, available support, and updates on the programme. The programme produced a small number of newsletters, which it sent to registered applicants and published on its website.

Eligible applicants had to apply before 30 April 2009, with those who lodged an application having a further two months to complete it (Western Australian Department for Communities c2012: 17). Approximately 50 per cent of applications were submitted incomplete: some service providers simply submitted lists of names (AU Interview 9). Programme staff then had to contact applicants to complete missing information. Some service providers in remote Indigenous communities requested permission to submit late applications for survivors involved with traditional lore or sorry business,Footnote ⁶ and for those adversely affected by widespread flooding (Rock Reference Rockc2012: 10). Redress WA received 171 late applications, 27 were accepted.

Compensable injuries included physical, sexual, emotional, and psychological abuse, and/or neglect (Western Australian Department for Communities 2011: 5). Applicants had to be eighteen on 30 April 2009, the original closing date of the programme. Applicants without identification documents could provide written statements from two referees. The programme did not have a schedule of specific institutions, but the state must have had formal responsibility for the survivor’s residential care at the time of the injury, which must have been prior to 1 March 2006. This was a firm parameter. Redress WA rejected applicants who had been informally placed in out-of-home care, this disproportionately affected Indigenous applicants (AU Interviews 8 & 9).

Redress WA accepted 5,917 applications for assessment. The application flow was marked by a significant increase during April–July 2009, when the programme received nearly 50 per cent of the final total (Western Australian Department for Communities c2012: 16). Western Australian residents submitted almost 90 per cent of the programme’s applications – half came from rural and/or remote areas: 42 per cent of applicants were under fifty years, and 49 per cent were male (Rock Reference Rockc2012: 3). Indigenous survivors submitted 3,024 (51 per cent) of applications. Former child migrants submitted 768 (13 per cent). Other groups were underrepresented, possibly because they lacked effective support organisations (‘Official Committee Hansard’ 2009b: 50). The eligibility requirement of having been ‘in state care’ may have dissuaded survivors of religious institutions who did not know they had been legally wards of the state (AU Interview 6).

Applications were prioritised if applicants had a terminal illness (Western Australian Department for Communities 2011: 26). Redress WA made 791 priority settlements of up to AUD$10,000 (‘Extract from Hansard, Hon Robyn McSweeney’ Reference McSweeney2010). Overpayments were not recovered. In September 2009, after twenty-nine applicants had died, the programme began to pay AUD$5,000 to the estates of deceased claimants (Rock Reference Rockc2012: 7). As many as 167 applicants passed away during the programme.

The fourteen-page application form asked survivors to describe the injuries they suffered and the consequential harms they incurred, along with time and place of any residence. Officials believed that less structure would encourage applicants to provide more accurate information. To avoid priming applicants, the form did not list potential forms of abuse or neglect, it simply asked applicants to provide ‘as much detail as possible’ (Redress WA Reference Redressc2008: 4). Most evidence was narrative, often handwritten, although other relevant documentation might be appended.

Completed applications were placed on a waiting list before the research team began to verify care placements. Redress WA undertook to search institutional records. This preliminary research might uncover other relevant material; however, ‘because of time pressures, the principal focus was verifying [residence in] state care’ (Western Australian Department for Communities c2012: 20). Redress WA compiled dossiers on larger care institutions. These dossiers gave a brief overview of the institution’s history; a summary of relevant policy and regulation; contemporary evidence of violations, including characteristic forms of abuse and neglect; and a list of alleged perpetrators. This was followed by summary information, for example, the institutional history of Bindoon Boys Town states ‘… sexual abuse was particularly rife in the late 1940s and through the 1950s’ (Redress WA 2008/Reference Redress2009: 7). That short statement offered supporting evidence for survivors who claimed that they were sexually abused in that period. The summary also noted typical aggravating factors, such as the frequency of vicious public punishment. The dossier might conclude with some references and photos. Dossiers varied in quality. None were substantial and smaller placements would have less-developed dossiers – foster care was excluded. Where possible, assessors batched applications by institution and time. This facilitated the use of similar fact evidence, as specific perpetrators might be mentioned in multiple applications. However, this batching could only be partial, as most applicants had resided in more than one institution.

Contemporarily accepted abuse and legal injuries, such as caning, were not eligible. Applying the standards of the day, education was similarly assessed – for example, leaving school at the age of fourteen was not injurious (Government of Western Australia 2010: 19). Indigenous survivors of the Stolen Generations were not compensated for having been removed from their culture, but elements relevant to injurious cultural removal might comprise consequential harm and/or be compounding and aggravating factors (Government of Western Australia 2010: 13–14). Initially, any award of more than AUD$10,000 required a psychological report, paid for by Redress WA (‘Official Committee Hansard’ 2009b: 54). This changed in 2010 and only applications assessed at Level 4 (AUD$45,000) needed medical evidence of injuries (AU Interview 8). If there was uncertainty whether the application was at Level 4, Redress WA might pay for a medical report, but the programme did not otherwise defray legal or medical costs. This after-the-fact change in policy meant that many applicants submitted unnecessary material, including psychological tests (Green et al. Reference Green, MacKenzie, Leeuwenburg and Watts2013: 4; AU Interview 6).

Having reviewed the application, institutional history, and any other relevant evidence, the case worker interviewed the applicant by telephone. During the interview, survivors could add information and interviewers might prompt applicants to provide relevant information, if, for example, research had uncovered a placement the applicant did not mention (AU Interview 9). In addition, the interviewer would seek clarification of, and evidence regarding, abuses or consequential harms described in the application. As some time had usually passed between the original application and the interview, new information was often available, including personal or medical records. These interviews helped moderate the variable quality of the initial applications, particularly for applicants with poor literacy (Western Australian Department for Communities c2012: 9).

Applicants were never interviewed in person. An internal document suggests that in-person hearings would be too stressful and ‘a form of secondary abuse in some cases’ (Government of Western Australia 2010: 12). Moreover, attendees at a hearing might seek legal representation, which would increase costs. Because telephone interviews could also retraumatise applicants, applicants could indicate that they did not want to receive a telephone call (Redress WA Reference Redressc2008: 2). These survivors were notified by letter when their application was assessed and invited to provide further information. Redress WA developed protocols to protect the privacy and quality of these interviews. But this preparatory work was not always successful.

Having assembled the facts, the case worker scored the application using a matrix (Appendix 3.6). This matrix was not published until after the programme closed to new applications. Assessors used four components: the experience of abuse and/or neglect; compounding factors, such as how isolated the resident was when abused; consequential harms; and aggravating factors, such as degrading treatment. Each component was worth twenty points. Redress WA developed a table (Appendix 3.7) to gauge injurious experiences, using indicative descriptions to help assessors score applicants according to severity. By subdividing each application into several categories, each comprised of various factors, Redress WA tried to capture individual nuance while retaining consistency. Assessors were encouraged to holistically reflect on the outcomes (Government of Western Australia 2010: 8–10).

Although the general categories of abuse and neglect match information sought on the application form, applicants were not told how the programme would assess severity. Moreover, the application form is silent concerning the role of compounding and aggravating factors. The form asks for information about consequential harm, but it does not mention salient subcategories. Some of this information might have been sought during the telephone interview, but it remains true that assessors used information that was only partially related to evidence requested by the application form. This non-transparency responded to widespread worries that survivors might tailor their testimony so as to obtain higher settlements (AU Interview 9). Peter Bayman, the programme’s senior legal officer, told a Senate Inquiry that ‘[w]e did not want to design a scale [for assessment] and then publish it so that it became essentially a cheat sheet’ (‘Official Committee Hansard’ 2009b: 56). Moreover, the assessment guidelines were not compiled until October 2008 – nearly six months after the programme opened – with the fourth and final version confirmed in May 2011 (Western Australian Department for Communities 2011: 41).

The case worker’s initial assessment was submitted to a team leader, who would reprise the assessment. If the totals varied, the judgement of the team leader was generally decisive (AU Interview 9). If an applicant was near the minimum score for a higher-level payment, they would often get moved up. Then, a senior research officer produced a ‘Notice of Assessment Decision’, that summarised the application and graded its severity. The programme notified applicants who were to be declined that they had twenty-eight days to provide further information. Applications categorised as severe or very severe were assessed a fourth time by an ‘Internal Member’ who was a lawyer. Internal members examined both the application and the assessment process, they might, for example, review the telephone interview transcript for evidence of leading questions (AU Interview 9). That fourth assessment could result in further requests for information or change the severity assessment. Once satisfied, the internal member submitted a report to the four-person Independent Review Panel that assessed the application again (Western Australian Department for Communities c2012: 20). The Review Panel did not need to use the matrices and could take a holistic view of the application. When it disagreed with the internal member, the panel tended to increase the settlement value (AU Interviews 8 & 9). Senior staff moderated the whole process to ensure that total costs would not exceed the capital funding. However, on 29 August 2011 the government provided a further AUD$30 million to cover any cost overruns.

With respect to evidentiary standards, Redress WA variously claimed to presumptively believe all claims by applicants (Western Australian Department for Communities c2012: 8); to have applied the standard of ‘reasonable likelihood’ (Western Australian Department for Communities 2011: 12); and to have tested evidence according to the ‘balance of probabilities’ (Government of Western Australia 2010: 11). In short, the standard applied depended on the payment value. Applicants pegged for lower level payments benefitted from a presumption of truth, (AU Interview 9), however, higher payments were assessed on the balance of probabilities (Government of Western Australia 2010: 31).

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Twenty-six agencies were initially contracted to support applicants, with more engaged over time (Government of Western Australia 2007; Western Australian Department for Communities; c2012; Department for Communities 2009: 42). Redress WA published a booklet titled ‘Support Services for WA Care Leavers’ in November 2009 (Redress WA Reference Redress2009). Organisations were contracted to provide up to twelve hours of assistance for each survivor (Green et al. Reference Green, MacKenzie, Leeuwenburg and Watts2013: 4). The demands on key support services were significant. The Aboriginal Legal Service (ALS) submitted over 1,000 applications (Barter, Razi, and Williams Reference Barter, Razi and Williams2012: 7–10). Indeed, overwhelmed by the demand, at one point the ALS stopped accepting new clients (AU Interview 6). At one step removed, Redress WA’s helpdesk provided information to both applicants and service providers, receiving 500 calls, 100 emails, and about 20 text messages each week (Western Australian Department for Communities c2012: 4).

Redress WA received variable reviews concerning the support provided (Royal Commission into Institutional Responses to Child Sexual Abuse 2014c: 66). For one survivor

But another observer claimed that Redress WA initially failed to attract substantial numbers of applicants because it did not integrate well with support services (Senate Community Affairs References Committee 2009: 46). And support was needed. The ALS suggested that ‘participation in the scheme was traumatic for all involved’ (Barter, Razi, and Williams Reference Barter, Razi and Williams2012: 7). Phillipa White, coordinator of the Christian Brothers Ex-Residents Society, was ‘taken aback by the degree of distress and trauma’ involved (‘Official Committee Hansard’ 2009b: CA2). Counselling was provided by a number of service providers. Some contracted counselling services also assisted in developing applications, this could turn the application process into a more holistic assessment (Green et al. Reference Green, MacKenzie, Leeuwenburg and Watts2013: 4). Redress WA applicants could access three hours of individual counselling (Australia Reference Canada2009). Additional counselling could be arranged on request and Redress WA sponsored support groups across the state. By 2010, Redress WA had provided counselling services to 3,666 people (‘Extract from Hansard, Hon Robyn McSweeney’ Reference McSweeney2010). By the 2012 financial year-end, around 75 per cent of claimants had received application support and/or counselling at a total cost of AUD$3,814,000.Footnote ⁷

To help survivors access their personal records, Western Australia sponsored the 2004 publication of Signposts (Information Services 2004). Signposts is both a website and a 637-page print publication that lists over 200 relevant institutions, what records are available concerning each institution, where those records are located, and brief comments on their condition. But apart from Signposts, Western Australian undertook little preparatory work with records before Redress WA (AU Interview 7). The Department of Child Protection had primary responsibility for providing records and was rapidly overwhelmed by demand, with two-year delays from mid-2008 until 2011 (AU Interview 6). To manage, the department ceased providing full files, instead offering basic information about the place and duration of a survivor’s residency. By 2010, Redress WA was requisitioning and searching complete records itself (AU Interview 9).

There were good immigration records for child migrants. Some ‘Native Welfare’ records were on microfiche in good condition and some religious orders had archived their records with the state (AU Interview 7). Nevertheless, ‘the scant nature, fragmentation and destruction of departmental records often posed problems’ (Rock Reference Rockc2012: 9). Records were often ‘incomplete and paper-only’ making verifying the survivors’ residence in care ‘one of the most complex, time-consuming parts of the Redress WA process’ (Western Australian Department for Communities c2012: 18). Applicants needed to lodge a Freedom of Information Act request to receive their records, which approximately one-third did (‘Extract from Hansard, Hon Robyn McSweeney’ 2010). Third party information was redacted (Western Australian Department for Communities 2011: 23). Interestingly, complaints about redaction are not prominent among the primary sources.

Redress WA did not fund legal support because that would have reduced monies available for payments (Government of Western Australia 2010: 12). Originally, the programme was going to pay AUD$1,000 in legal fees to counsel applicants when signing waivers. However, when the programme decreased the maximum available payment, the programme abandoned the use of waivers. Nevertheless, as both Kimberley Legal Services and the ALS were contracted to support applicants, the 1,200 survivors they supported would have benefitted from legal advice (Kimberley Community Legal Services c2012; Barter, Razi, and Williams Reference Barter, Razi and Williams2012). Some survivors claimed to have spent more on legal fees than they received in the settlement (Pearson, Minty, and Portelli Reference Pearson, Minty and Portelli2015: 7).

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The settlement offer included the proposed payment value, along with information as to where the survivor could find relevant personal records. For both reasons of privacy and welfare, the programme did not want to send sensitive and potentially distressing information to survivors without warning; therefore, explanations of the payment values were available only upon request (AU Interview 9). Approximately 1,300 applicants requested an explanation (Rock Reference Rockc2012: 5). Redress WA offered free financial counselling (Redress WA Reference Redress2008a: 16). However, I could find no information indicating that survivors commonly sought financial advice. Kimberley Community Legal Services indicates that ‘… few of the successful claimants received assistance to … [help them] … use their Redress money’ (Kimberley Community Legal Services c2012: 2).

Payments were generally by direct deposit. Monies could be placed in trust if the applicant was a prisoner or if the applicant was ‘mentally incapable of managing their own affairs’ (Western Australian Department for Communities 2011: 25). The ex gratia payments were not taxable nor charged against means-tested benefits. A very small number of people who had previously been compensated by the state had that money deducted from their settlements (Western Australian Department for Communities 2011: 15). No deductions were made for prior settlements with NGOs, such as churches. All successful applicants were offered a standard apology letter signed by the minister for communities and the premier of Western Australia. As many as 4,013 letters were issued (Department for Communities 2012: 57). Police referrals should have occurred when applications provided evidence of criminal offending, unless the survivor requested otherwise. The ALS advised that no Indigenous applicant would permit a police referral (AU Interview 9). However, if a child was presently in danger, a police referral was legally required. Redress WA made 2,233 police referrals (Royal Commission into Institutional Responses to Child Sexual Abuse 2014c: 65).

Originally, all payment offers were to be made before 30 April 2010 (Redress WA Reference Redress2008a). That did not happen. The first payments were issued in February 2010 (McSweeney Reference McSweeney2010). Afterwards, payments were made as assessments were completed: 1,300 were finalised by the end of 2010 and assessment continued until 30 June 2011 (Royal Commission into Institutional Responses to Child Sexual Abuse 2014c: 63). The last payments were made in 2012. The final values are set out in Table 5.2.

The programme paid the same amount to all survivors assessed at each level. The mean payment average was AUD$22,459. Survivors could request a review of errors of fact or process, but not the payment amount (Western Australian Department for Communities Reference Rockc2012: 21). Reviews were first conducted internally. If the applicant remained unsatisfied, they could complain to the Department of Communities. In both cases, the file could be referred to the Independent Review Panel, which had, in all cases of Level 3 and 4 assessments, already reviewed the assessment. Applicants could address a complaint to the State Ombudsman. Only nineteen appeals (0.3 per cent of applicants) affected the settlement outcome (Department for Communities 2012: 57).

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With an emphasis on supporting applicants through community services, Australian redress ensured that many survivors could get help from local agencies and from people they knew. However, budget caps led to relatively low payment values, and particularly in the case of Redress WA, rushed implementation created delays and procedural instability. Important for my argument supporting survivor choice, Queensland Redress and Redress WA developed somewhat flexible pathways to redress that differed according to their eligibility requirements and assessment processes. That approach resonates with the Canadian programmes discussed in the next chapter.

6.1 Background

Canada’s residential school system developed during the nineteenth century. Religious orders operated most schools, which primarily housed ‘status Indian’Footnote ¹ children. These culturally genocidal institutions sought to eliminate Indigenous cultures by removing their children (The Truth and Reconciliation Commission of Canada 2015e: 1; MacDonald Reference MacDonald2019). The schools were also systemically abusive. In 2006, the Indian Residential Schools Settlement Agreement (IRSSA) initiated three monetary redress programmes – the Common Experience Payment (CEP) and its ancillary Personal Credits programme, alongside the Independent Assessment Process (IAP). IRSSA also committed Canada to provide CDN$125 million for the Aboriginal Healing Foundation; CDN$60 million to research and preserve the experiences of the survivors; CDN$20 million for commemorative projects; and CDN$60 million for the Truth and Reconciliation Commission (2009–2015). These initiatives were complemented by the prime minister’s 2008 parliamentary apology (Harper Reference Harper2008).

Although they were independent processes, as composite parts of a single agreement, the three monetary redress programmes shared a common background, stakeholders, eligible populations, and some administrative and support provisions. The CEP redressed the collective experience of structural injuries, including the loss of language and culture. The Personal Credits programme provided in-kind redress, while the IAP redressed individually experienced, often interactional injuries, including consequential damages. The programmes were very large. The CEP had more than double as many applicants (105,530) as the second largest exemplar – the IAP. Both the IAP’s 38,276 applicants and the 30,042 initial Personal Credit applications greatly exceeded those in the largest non-Canadian exemplar, Ireland’s RIRB (16,649). Canada’s programmes were as expensive as they were big.Footnote ² The CEP and Personal Credits cost over CDN$1.9 billion. IAP payments totalled CDN$3.2 billion (Independent Assessment Process Oversight Committee 2021: 88). This chapter will focus first on the CEP and its ancillary Personal Credits programme. I then address the IAP.

6.2 Common Experience Payments

Indigenous parties co-developed and implemented IRSSA, with the Assembly of First Nations (AFN) occupying a central position. CanadaFootnote ³ assumed administrative responsibility for redress, but the courts had oversight responsibility, the administrative aspects of which were managed by an amicus curiae, Crawford Class Action Services. Developing and delivering such large and complex programmes required coordinating the work of several government departments and stakeholder groups along with hundreds of local agencies. This created problems (Dion Stout and Harp Reference Dion Stout and Harp2007: v). The National Administrative Committee (NAC) was the peak administrative body for all three programmes. It comprised seven representatives of the settling parties.Footnote ⁴ The NAC was responsible for regulatory interpretation. It could issue some decisions based on a majority of five, but it usually sought consensus, which meant it was slow-moving. For example, negotiations over the CEP application form continued until 6 September 2007, two weeks before the programme was launched (Strategic Policy and Research Branch 2013: 15).

Service Canada (a government agency) was one of the shopfronts working with survivors, receiving applications, ensuring their completeness, inputting information into the database, and confirming applicants’ identity. Service Canada would also issue CEP payments. The amicus curiae, Crawford Class Action Services, operated a parallel client-facing email/telephone ‘CEP Response Centre’. Crawford mediated between the programme and survivors, administered the CEP appeal process, and operated the IRSSA website. Donna Cona, an Indigenous service business, also ran a helpline.

Behind those outward-facing agencies, Canada’s Department of Indian Affairs and Northern Development ran the primary administrative body – Indian Residential Schools Resolution Canada (IRSRCFootnote ⁵). In 2007, Canada estimated that IRSSA would require around 600 full-time staff (Indian Residential Schools Resolution Canada 2007a: 5). At the time, IRSRC had 317 staff, mostly permanent civil servants supplemented by contractors (Audit and Assurance Services Branch 2015: 21). The programmes struggled to recruit and retain staff. IRSRC experienced significant turnover, with three deputy heads succeeding one another during 2006–2007. The 2008 global financial crisis led to a hiring freeze. Staffing challenges degraded capacity, decreased morale, and contributed to delays (Audit and Assurance Services Branch 2015: 37). IRSRC’s host ministry was renamed and reorganised several times over the programmes’ duration, aggravating morale problems.

Within IRSRC, the CEP had two key sub-units, the CEP Co-ordination Unit, responsible for administration, and the National Research and Analysis Unit (NARA), which researched and validated CEP applications. Operational and staffing costs for the CEP from 2006 to 2013 were CDN$101 million (Audit and Assurance Services Branch 2015: 9). Service Canada spent a CDN$36 million (Strategic Policy and Research Branch 2013: 36). Health Canada provided significant funding, of around CDN$55 million per year, in health and counselling support, but that figure includes funding for the IAP and the TRC (Office of Audit and Evaluation 2016: 1).

The visibility of redress benefitted from Canada’s largest-ever advertising campaign, with information packages conveyed through and to around 140 local and Indigenous organisations in English, French, and a variety of Indigenous languages (Audit and Assurance Services Branch 2015: 9). Advertising synchronised with IRSSA deadlines, with 98 per cent of survivors each seeing an average of 14 advertisements (Indian Residential Schools Adjudication Secretariat c2013). Because IRSSA extinguished the survivors’ right to sue, a 150-day opt-out period enabled them to decide, both individually and collectively, if they wished to lose those rights. As many as 1,288 opted out before the 20 August 2007 deadline (Strategic Policy and Research Branch 2013: 5, fn 21). IRSSA would have been discontinued if that figure had exceeded 5,000.

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The CEP addressed collective and structural injuries experienced by those residing in the residential schools. Survivors received CDN$10,000 for the first year (or part thereof) of residence in a scheduled institution, then CDN$3000 for every subsequent year of residence (or part thereof) prior to 31 December 1997. Eligible applicants needed to be alive on 30 May 2005, not have opted-out, and to apply before 19 September 2011. That deadline was extended to 19 September 2012 for those who experienced hardship or exceptional circumstances. Posthumous applications were accepted for survivors who died after 30 May 2005.Footnote ⁶ Applicants who were sixty-five years or older on 31 May 2005 and applied by 31 December 2006 were eligible for advance payments of up to CDN$8,000. A total of 13,547 applications resulted in around 10,300 advance payments (Audit and Assurance Services Branch 2015: 5).

The short CEP application form asked applicants to provide identity documents and to state if they were status Indian, non-status, Métis, Inuit, or Inuvialuit. The survivor could select payment by direct deposit or cheque and needed to consent to Canada verifying their identity and duration of residence. The key evidence concerned which school(s) the survivors attended and the dates of attendance. A schedule of eligible institutions was appended to the form. A school was included if Canada was responsible for it and it provided overnight accommodation. The schedule should have included all such schools; however, exclusions occasioned widespread and bitter complaints (The Truth and Reconciliation Commission of Canada 2012: 9; Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 34; Logan Reference Logan, Castellano, Archibald and DeGagné2008: 84). IRSSA specified that institutions might be added if they fit the criteria for inclusion. Applications by 9,471 survivors requested the addition of 1,531 institutions (Indigenous and Northern Affairs Canada 2018). Most requests were denied. Canada accepted seven additions and the courts added three more – the last, when appeals ended in July 2018, brought the total number of scheduled institutions to 140.

Survivors could submit CEP applications by mail, however, 63 per cent of applications were submitted in person at a Service Canada Centre or at a local outreach session. Outreach visits by Service Canada staff leveraged local Indigenous agencies and support for applicants (Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: xiv). Because on-site support catered to reserve-based applicants, greater challenges were encountered with off-reserve, urban, and transient applicants. Service Canada created special communication conduits with federal (but not provincial) prisons (Strategic Policy and Research Branch 2013: 19 fn46).

In 2006, Canada estimated that there were 78,994 eligible survivors (Audit and Assurance Services Branch 2015: ii). This proved accurate: there were 79,309 CEP payments. However, Canada was prepared neither for the large number (over 25,000) of ineligible applications, nor the initial high volume. There were 38,475 applications in the first two weeks and around 80,000 after six weeks – a number that was originally expected would take a year to reach (Audit and Assurance Services Branch 2015: 48; Indian Residential Schools Resolution Canada 2007b: 34). There were 105,530 applications in total. Those high numbers reflected the programme’s visibility and the good work of local support services, but they also exacerbated delays. IRSSA required most applications to be processed within thirty-five days and 80 per cent to be paid within twenty-eight days. Only 28 per cent met that standard (Strategic Policy and Research Branch 2013: 30). The ensuing scandal led the government to mandate the completion of 53,000 applications by 22 December 2007. Still, the overall throughput is noteworthy. The programme processed 78,186 applications between September 2007 and March 2008 (Strategic Policy and Research Branch 2013: 36).

When applications had missing information, Service Canada attempted to contact applicants informally. If that failed, Service Canada posted formal notices of incompleteness: the 13,477 such notices represent 13 per cent of the total applications. As this figure does not include informal efforts, it understates the extent of the challenge posed (Strategic Policy and Research Branch 2013: 29). In the end, 2,294 applications were withdrawn or too incomplete to process.

The CEP sought to reduce the potential for retraumatising survivors by minimising contact with them. Documents provided the primary form of evidence. NARA would attempt to validate residential duration using a computer-assisted research system to search its database of over one million records (Audit and Assurance Services Branch 2015). Developed in-house, the automated software included common spelling errors and phonetic variations and covered records spanning ten years before and after the applicant’s stated period of attendance. However, problems emerged during the critical September–October (2007) period (Audit and Assurance Services Branch 2015: 41). The automated validation rate of 44 per cent was significantly lower than the expected 65 per cent, contributing to delays (Indian Residential Schools Resolution Canada 2007b: 2).

The standard of evidence was the balance of probabilities. If the automated software did not validate the application, or validation was uncertain, there was a manual review. Minor uncertainties regarding residential duration were resolved in favour of the claimant. Gaps in the primary records would be interpreted as a period of residence when their duration was less than the number of years that could be verified (Indian Residential Schools Resolution Canada 2007b). Greater uncertainties required further documentary evidence. Verification could also depend on the quality of available records; if the records were generally good, they were given greater weight. Where there was doubt, the programme could ask applicants questions designed to elicit confirmation of residence. Applicants might provide affidavits, photographs, or other relevant documentary evidence; however, many applicants had incomplete or inaccurate memories of their school attendance (Fabian Reference Fabian, Kitty, Fabian and Felices-Luna2014: 255). The programme rejected 23,927 applications (23 per cent)(Aboriginal Affairs and Northern Development 2012: 5). Some applicants were duplicates, others intentionally provided inaccurate information; however, most rejections happened when the applicant did not reside at a scheduled institution or the records were inadequate. Strict validation protocols meant some claims were rejected in whole or in part despite researchers believing the applicant (Fabian Reference Fabian, Kitty, Fabian and Felices-Luna2014: 248).

Appeals by unsuccessful applicants created another backlog. There were 27,798 internal reconsideration requests managed within IRSRC, with 9,771 increased payments averaging CDN$8,363 (Indigenous and Northern Affairs Canada 2018: 5; Aboriginal Affairs and Northern Development 2012: unpaginated). Should the applicant remain unsatisfied, they could appeal to NAC. There were 5,259 appeals to NAC, 1,164 of which resulted in increases averaging CDN$7,655 (Indigenous and Northern Affairs Canada 2018; Aboriginal Affairs and Northern Development 2012: 5). Unhappy with NAC’s response, 741 applicants appealed to the courts, 7 were successful (Indigenous and Northern Affairs Canada 2018).

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Many survivors found the application process difficult, and most sought help (Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 95; Dion Stout and Harp Reference Dion Stout and Harp2007: xii; Strategic Policy and Research Branch 2013: 23). As previously mentioned, three agencies, Donna Cona, Crawford Services, and Service Canada ran helplines providing advice. Large call volumes created long wait times: Service Canada received over 100,000 calls in November 2007 (Strategic Policy and Research Branch 2013: vi).

The Resolutions Health Support Program (RHSP) supported survivors and their families. Delivered by Health Canada, RHSP funded three specific roles: cultural support workers, health support workers, and professional counsellors. The largest cohort provided cultural support. Cultural support workers might be locally based Elders, healers, or others with cultural knowledge who helped survivors access ceremonies, workshops, prayer, or simply offered personal assistance. Local cultural support recognised that community healing is as important as individual processes (Castellano Reference Castellano2010: 26). Although locally provided services led to some privacy and confidentiality problems, 95 per cent of cultural support users reported that they felt their privacy was respected (Office of Audit and Evaluation Health Canada and the Public Health Agency of Canada 2016: 30).Footnote ⁷

Health support workers provided professional mental health support during the application process. These workers had some tertiary education, experience with mental health assistance, and needed to be culturally competent – many were survivors. Because their work with survivors was short-term, often only the day of the IAP interview (discussed in Section 6.4), one of their key functions was to ensure that survivors had appropriate post-interview care (CA Interviews 1 & 6). In the third form of support, the RHSP funded professional counselling services – providing survivors and family members with an initial two-hour assessment. Normally, the counsellor would develop a treatment plan of up to twenty hours, with more available upon request. As part of its counselling services, Health Canada also maintained the ‘Indian Residential Schools Crisis Line’ – a telephone service. The programme’s need for large numbers of counsellors created problems and their high turnover challenged survivors, who struggled to develop relations with a number of different counsellors (Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 70).

In 2006, the RHSP had CDN$94 million funding over six years (Evaluation, Performance Measurement, and Review Branch: Audit and Evaluation Sector 2009: 44). High demand meant the programme was over-budget by 2011. Health Canada then spent another CDN$284.7 million between 2010 and 2015 on the RHSP (Office of Audit and Evaluation Health Canada and the Public Health Agency of Canada 2016: 6). Counselling and transportation services consumed roughly 23 per cent of Health Canada’s budget, 4 per cent went to civil service salaries, leaving 73 per cent for emotional, cultural, and counselling services, much of which went to Indigenous organisations (CA Interview 6; Office of Audit and Evaluation 2016: 1). The bulk of this support capacity did not emerge until after the CEP, but by 2012 there were 286 health support workers and 403 cultural support workers (Green Reference Green2016: 190–91).

The IRSSA required Canada to settle all associated legal fees incurred prior to May 2005 and prohibited anyone charging further legal fees for CEP applications. This effectively detached CEP applicants from legal support and created a two-tier system. Survivors who had engaged lawyers prior to IRSSA not only had their fees paid by Canada, they often had a professionally compiled claim dossier and access to their personal care records. Survivors who entered the process afterwards received neither legal assistance nor help accessing their records. Instead, Canada undertook responsibility for record searches. By 2007, Canada had created a database that aspired to be a complete list of all status Indians who had resided in scheduled institutions. However, as intimated above, the lack of records and their inaccuracy hindered many applicants (Fabian Reference Fabian, Kitty, Fabian and Felices-Luna2014: 256). Many records had been destroyed (Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 29). In 2007, an audit of NARA’s database indicated significant gaps, particularly for non-status Indians, and significant inaccuracies due to input and scanning errors (Audit and Assurance Services Branch 2015: 24, 33). These problems contributed to delays, frustrations, and public criticism.

The CEP increased pressure on general services for health, counselling, and policing (Evaluation, Performance Measurement, and Review Branch: Audit and Evaluation Sector 2009: 36). One survivor was reported as saying that

In response, the Aboriginal Healing Foundation funded healing circles, workshops, and other local services. Similarly, family members, volunteers, band councils, and First Nations helped survivors, and Canada funded additional Indigenous support programmes. In 2008–2009, that funding totalled CDN$4 million, with the three largest recipients being the AFN (CDN$535,000), the Indian Residential School Survivors Society (CDN$370,000), and the National Residential School Survivors Society (CDN$474,000) (Indian and Northern Affairs Canada 2009: 19). Some large Indigenous organisations were excluded, such as the Congress of Aboriginal Peoples, which represents Métis and off-reserve Indigenous persons. There were persistent and significant differences in the on- and off-reserve support available (Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 32–33; CA Interview 5).

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Canada paid 79,309 CEP settlements (Crown-Indigenous Relations and Northern Affairs Canada 2019). These payments should not have affected survivors’ tax assessments or eligibility for benefits. Direct deposit was preferred for security and privacy reasons, as there were concerns that physical cheques could be lost and many rural locations were served by (non-private) community mail bags (Strategic Policy and Research Branch 2013: 15). A computer system produced generic decision letters, which informed survivors of their right to appeal (Audit and Assurance Services Branch 2015: 42).

The 79,309 payments totalled CDN$1.622 billion, with a mean average of CDN$20,457 (Crown-Indigenous Relations and Northern Affairs Canada 2019). The average processing time during the first two years was 74.8 days (Strategic Policy and Research Branch 2013: 41). With the majority of payments made in 2008, the CEP brought a ‘massive and sudden influx of money into Aboriginal communities across Canada’ (Dion Stout and Harp Reference Dion Stout and Harp2007: xi). Potential problems associated with that influx were anticipated and sources often attribute serious problems to the receipt of CEP payments (Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 44; Jung Reference Jung2009: 15 fn49; Fabian Reference Fabian, Kitty, Fabian and Felices-Luna2014: 258; Miller Reference Miller2017: 168–69; Edelman Reference Edelman2012: 77; Audit and Assurance Services Branch 2015: 42). As the negative effects of the CEP are a prominent theme, it is interesting that a contemporary study of survivors does not provide strong evidence of the phenomenon (Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 168–70). Indeed, a comprehensive reflexive study suggests that money from IRSSA was not widely misused (National Centre for Truth and Reconciliation 2020: 38–39).

6.3 Personal Credits

IRSSA committed Canada to spend CDN$1.9 billion on the CEP and stipulated that any underspend would be used to benefit survivors. When individual payments left nearly CDN$300 million unspent, CEP recipients became eligible for a non-cash ‘personal credit’ of up to CDN$3,000. Credits could be used for educational, personal development, or ceremonial services. Credits could be assigned to immediate family members and posthumous applications were welcome. Crawford Class Action Services began administering personal credits applications in January 2014. The administrative costs of the programme (around CDN$24 million) were paid out of the remaining funds – Crawford would receive CDN$15.7 million, Canada CDN$3.4 million, and Indigenous agencies would split most of the remaining administrative budget (Indigenous and Northern Affairs Canada 2016: 4).

Applicants had to specify how the credits would be used and monies would be transferred directly to the service provider. Indigenous organisations assisted applicants and provided services upon which the credits could be spent. The conflict of interest is obvious. Still, by working with Indigenous agencies the Personal Credits programme could benefit

The application process had two steps. First, the survivor needed to apply for a credit for a specific service, then, once approved, apply through that service provider to redeem their credit(s). The original application deadline was 31 October 2014, but only a few applications were received initially (Indigenous and Northern Affairs Canada 2016: iv). As of 8 January 2015 only around 24,500 survivors had made an initial application (Assembly of First Nations 2015). The advertising emphasis on using credits to pay for college and university education was unattractive to older survivors (CA Interview 1). Later communications emphasised the use of credits for group and cultural activities, traditional knowledge and skills development, and cultural or healing ceremonies. In late 2014 and early 2015, there was a concerted effort that included CDN$2.3 million in outreach funding for the AFN and CDN$1.2 million for Inuit organisations, and the application deadline was extended to 9 March 2015.

Applications received only a cursory review. Nevertheless, around 11 per cent (3,240) were initially denied, usually for incompleteness (Indigenous and Northern Affairs Canada 2016: 13). As of 31 March 2016, survivors had submitted 30,042 initial applications and 23,774 redemption forms for a total value of CDN$57 million (Crown-Indigenous Relations and Northern Affairs Canada 2019). All credits had to be used by 31 August 2015, with extensions for survivors of institutions added to IRSSA’s schedule of institutions after that date. The primary cause for redemption requests being refused was that they were submitted after the deadline (Indigenous and Northern Affairs Canada 2016: 14). After the personal credits were disbursed, IRSSA specified that remaining funds would go to the National Indian Brotherhood Trust Fund (NIBTF) and the Inuvialuit Education Foundation (IEF) according to the proportion of CEP applicants served by each.

6.4 Independent Assessment Process

When compared to the other two programmes, the IAP provided larger payments, redressed interactional and individual injuries, and was much more comprehensive. IRSSA established three key administrative bodies for the IAP: the Independent Assessment Process Oversight Committee (the Oversight Committee); the Indian Residential Schools Adjudication Secretariat (the Secretariat), which reported to the Oversight Committee, and served as the IAP’s administrative manager; and the Settlement Agreement Operations Branch (SAO), representing Canada.

Responsible for policy development and interpretation, the Oversight Committee comprised representatives from IRSSA’s parties, plus an independent Chair. The Oversight Committee reported to the NAC, but the NAC rarely involved itself in IAP operations (CA Interview 4). The SAO researched applications, provided background information on residential schools, and organised payments. The key SAO figure was the ‘Resolution Manager’, the lawyer who represented Canada at evidentiary interviews and when negotiating settlements. Resolution managers received four months of training. Some were seconded from the Department of Justice, and most were young and recently articled (CA Interview 4). SAO had 220 staff members by 2015.

The Secretariat was the central IAP agency and was responsible for outreach, receiving applications, liaising with counsel, organising interviews, coordinating medical and psychological assessments, hiring and training adjudicators, and communicating payment offers. Led by the chief adjudicator, the Secretariat required a large and well-trained staff with a variety of skills. Again, there were significant staffing problems. In 2006 Canada estimated that the IAP would require 445 staff to manage 2,500 applications per year (Estimates reported in Charles Baxter Sr. & Elijah Baxter et al. v. Attorney General of Canada et al. 2006). It had 241 employees at its peak in 2013, when it resolved 6,251 applications (Indian Residential Schools Adjudication Secretariat 2014: 10). In addition, the Oversight Committee contracted around 120 adjudicators. Adjudicators assessed claims and determined settlement values. Again, there were persistent staffing difficulties and IRSRC ran four hiring rounds for adjudicators, the last concluding in 2011.

The IAP originally expected 12,500 applications (Oversight Committee 2011: 3). It received 38,276. Application forms must have been postmarked before 19 September 2012 and late applications were only accepted in exceptional circumstances. Crawford Class Action Services received applications and conducted an initial eligibility review (Indian Residential Schools Adjudication Secretariat Reference Coughlan and Thompson2019: 6). Crawford admitted 33,867 applications. Most preliminary rejections concerned unscheduled institutions or claims that had already been settled. Between 2008 and 2011, there were approximately 430 applications per month. That rate doubled in 2012, with 7,670 in the final month of September 2012. Men submitted around 51, women 49 per cent of applications (Independent Assessment Process Oversight Committee 2021: 57). Most were Canadian residents, only 338 expatriates applied. The IAP accepted posthumous applications for those who died after May 2005.

The Secretariat worked with Indigenous organisations to make outreach material comprehensible and culturally appropriate (CA Interview 7). Secretariat staff attended over 350 conferences, workshops, meetings, First Nations assemblies, TRC events, and powwows (Indian Residential Schools Adjudication Secretariat 2013a: 8). All CEP applicants were sent a letter inviting them to apply for an IAP. In 2009, the Secretariat conducted analysis to ensure that further outreach would target populations generating lower-than-expected numbers (Indian Residential Schools Adjudication Secretariat 2010: 6).

Eligible injurious experiences included any form of sexual abuse, serious physical abuse, abuse leading to serious harms and, in addition, consequential damage. Eligible injuries could be inflicted by school staff, peers, or other adults associated with a scheduled institution. The IAP shared the CEP’s schedule of residential schools, although non-residents could claim for injuries experienced when participating in an authorised activity at a scheduled institution. Applicants were asked for identifying information and the schools they attended. The application form then asked for details about their injurious experiences, the names and positions of those involved and whether staff knew, or should have known, about the abuse. This information could be provided in tabular and narrative forms. The application asked for specific aggravating factors, such as racial abuse or the betrayal of trusting relationships, presented as tick boxes. The Secretariat’s comprehensive guide helped survivors code their experiences (Indian Residential Schools Adjudication Secretariat 2018b).

To claim for consequential damage, applicants needed to describe, in free text, how injuries affected their lives and any treatment they had received. Applicants were prompted to assess their harms’ severity using a five-step matrix. The form probed the survivor’s education and work history, again asking the applicant to assess the severity of any impairment using a matrix. In addition, claimants could apply for actual income lost as a result of abuse-in-care, such as having lost a job. All claims for severe consequential damage required supporting evidence, such as a medical report, but claims for actual income loss were particularly difficult to sustain. Only eighteen applicants (0.04 percent) were successful (Galloway Reference Galloway2017). Looking forward, applicants were also asked to outline a post-settlement treatment plan and its costs. The last parts of the form concerned the applicant’s preferences regarding the forthcoming evidentiary interview, including the gender and ethnicity of adjudicators and the presence (or absence) of church parties; a declaration that the application is truthful; and consent for Canada to share information and access relevant records.

The IAP expedited claims from very elderly applicants and those with serious health problems. That expedited process allowed interviews to occur before documentary evidence was collected. Otherwise, applications went through one of three processes: standard, complex, or court. There were only three ‘court track’ applications (CA Interview 4).Footnote ⁸ The main work of the IAP was conducted in the standard and complex processes. These processes differed according to the types of injury and the corresponding standards of evidence. Most claims went through the standard process. These claims concerned redress for specified forms of abuse and consequential harms, and the standard of evidence was the balance of probabilities: abuse needed to be more likely to have happened than not and redressable harms needed to be plausibly linked to those acts of abuse. However, higher value settlements tended to require more and better evidence, including professional reports (Canada et al. 2006: Schedule D, Appendix VII).

A small proportion, 3 per cent, of claims (968) used the complex process, which included redress for serious psychological harms caused by ‘other wrongful acts’ and for the actual income losses mentioned above. ‘Other wrongful acts’ were injuries not enumerated on the IAP’s list of compensable abuses and needed to have caused severe damage (Indian Residential Schools Adjudication Secretariat 2009b: 2). The redress of damage on the complex track used a higher evidentiary standard wherein survivors needed to prove causation.

Most applications were submitted incomplete and the Secretariat held the case files as parties progressively added documents (Independent Assessment Process Oversight Committee 2021: 43). Specific documents were mandatory for certain claims. For example, if the survivor sought redress for an ongoing medical disorder, they needed a report from a medical professional attesting to their illness. Excepting priority cases, interviews could not proceed until all mandatory documents were provided. The Secretariat prioritised applicants whose age or failing health would impair their ability to participate in the programme, alongside those going through the ‘group process’ (discussed below). Applications could include thousands of pages, including medical, police, departmental, employment, welfare, and corrections files. As thousands of applicants sought their records, many agencies became overwhelmed by the demand, leading to further delays (Independent Assessment Process Oversight Committee 2021: 43; Indian Residential Schools Adjudication Secretariat 2011: 20). Professional reports could be challenging to obtain in rural communities, and the Secretariat experienced ongoing difficulties in retaining competent professionals. And when IAP assessment was treated as non-urgent, applicants could experience long waits for an appointment with busy medical professionals (Indian Residential Schools Adjudication Secretariat 2011: 22–23).

To help with consistency, the Secretariat developed a secure searchable online database of exemplar IAP decisions. Beginning in December 2013, the Secretariat also began to hold claims that would benefit from information gathered in other cases. The SAO compiled a list of around 2,200 affected claims and identified 647 that might provide beneficial evidence (Indian Residential Schools Adjudication Secretariat 2014: 21). This encouraged a batching of related applications and adjudicators developed expertise with specific geographical groupings of schools (CA Interview 7).

Adjudicators usually received the applicant’s file in the weeks prior to the interview (Bay Reference Bay2013: 3). The claim would then proceed through a negotiated settlement or interview. The negotiated process was faster, and dispensed with the evidentiary interview if the claimant and SAO agreed on a settlement value. The negotiated process developed over time, before 2010 the SAO would only negotiate with claimants who had previously sworn evidence (Indian Residential Schools Adjudication Secretariat 2011: 15). As the SAO became more accommodating, 4,415 claims were settled through negotiation (Independent Assessment Process Oversight Committee 2021: 50).

The majority of cases proceeded to interviews. Interviews were private and confidential and adjudicators, with assistance from the Secretariat, were responsible for ensuring they were located in safe, accessible, and convivial locations. Vancouver and Winnipeg had specially designed hearing rooms, but adjudicators travelled to communities across Canada to hold interviews in community halls, council offices, hotels, and friendship centres. Both their lawyer and an assigned health support worker met with the survivor prior to the interview. Translators were available if the survivor wished. If requested, a cultural support worker would attend and might perform a ceremony. The Secretariat would fund the travel costs of two personal support people. Because interviews forced friends and family to confront details of the abuse experienced by their loved ones, most survivors proceeded with only their legal representative (Bay Reference Bay2013: 3).

The adjudicator presided over the inquisitorial interview, which could last several hours. The adjudicator would explore the survivor’s life in detail, working through their life before the residential school, their experiences at the school, and what happened to them afterwards. In general, survivors found the interviews very difficult (Morrissette and Goodwill Reference Morrissette and Goodwill2013: 548; Bombay, Matheson, and Anisman Reference Bombay, Matheson and Anisman2014: 133; Miller Reference Miller2017: 180). ‘For some survivors, the act of sharing their testimony was one of the hardest things they have ever had to do in their lifetime’ (Petoukhov Reference Petoukhov2018: 106). Some applicants read prepared statements, but they were warned that might affect their credibility. The interview was designed to be a place where the applicant related what had happened to them in ‘their own words’.

Protracted interviews were punctuated by regular breaks for the survivor’s comfort. The SAO and church parties could use those breaks to suggest question topics to the adjudicator. Without the adjudicator’s explicit permission, no one else could address the survivor directly. The interview process could be iterative. If survivors disclosed new injurious experiences, they might need to get new reports, or the Secretariat might need to contact newly alleged perpetrators. The adjudicator would then reconvene the interview.

Interviews were attended by right by the adjudicator, the claimant, their lawyer, the SAO, and a church representative. Most churches would only attend if invited by the survivors (Independent Assessment Process Oversight Committee 2021: 30 fn86). Although rare, some interviews involved witnesses. If called by the survivor, witnesses might testify at the survivor’s interview, but if called by the SAO, church, or alleged perpetrator, they would have a separate hearing. Alleged individual perpetrators were notified and could make a submission, but they could not attend the survivor’s interview without the survivor’s consent. Canada provided alleged perpetrators with CDN$2,500 for legal advice, plus costs for their attendance. Although alleged perpetrators rarely attended interviews, nevertheless, the fact that they were notified that they had been named as perpetrators created significant difficulties: many alleged perpetrators were family members or fellow survivors living in the same community (Bombay, Matheson, and Anisman Reference Bombay, Matheson and Anisman2014: 17; Independent Assessment Process Oversight Committee 2021: 76).

The large numbers of independent adjudicators with differing backgrounds and experiences raised quality and consistency concerns. Differences emerged as some adjudicators were more therapeutic and others more forensic. Each adjudicator received five days of initial training, supplemented by annual workshops. By 2009, there were eight deputy chief adjudicators working with groups of adjudicators to promote good practice and review decisions. Claimants could request an Indigenous adjudicator, which could make ‘a big difference’ to the survivor’s experience (Hanson Reference Hanson2016: 12). But hiring Indigenous adjudicators proved difficult, contributing to delays (Miller Reference Miller2017: 176). Not only are Indigenous lawyers under-represented in Canada, many had potential conflicts of interest.

At the end of a (good) interview, the SAO representative would ask if they could thank the survivor, say that they believed the survivor’s account, and offer an apology letter. Participants might discuss a future care plan: adjudicators could award up to CDN$10,000 for treatment, counselling, or traditional healing or CDN$15,000 for psychiatric treatment. After 2010, the parties could opt for a ‘short form’ decision if all parties agreed on a settlement value and wished to waive their rights to a written decision (Indian Residential Schools Adjudication Secretariat 2011: 11). Short-form decisions were not available to self-represented claimants who were thought vulnerable to pressure into accepting an unfavourable settlement at the end of a long and difficult interview. Around 38 per cent of all decisions were issued in short-form (Indian Residential Schools Adjudication Secretariat 2016: 17).

After the interview(s) concluded and all the evidence was collected, the adjudicator would take final submissions during a conference call between the adjudicator, the SAO, and the applicant’s lawyer (CA Interview 4). At this point, the survivor and SAO could make recommendations. The adjudicator would then begin their assessment. Standard adjudicator decisions usually took around 160 days after the interview (Miller Reference Miller2017: 175). However, they could ‘easily’ take up to a year (CA Interview 7).

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IAP applicants were eligible for support through the RHSP, the Secretariat, and from legal counsel. The RHSP provided applicants with the counselling and cultural support described above; however, the IAP accentuated the role of the health support worker. Health support workers helped with logistics for interviews, met with the applicant beforehand, and attended the interview if the survivor wished.Footnote ⁹ However, high caseload numbers and Canada’s challenging geography often meant that health support workers only met survivors on the day of their interviews (Petoukhov Reference Petoukhov2018: 109; CA Interview 2). Cultural support was used by 28,918 survivors during the peak IAP period of 2010–2015 (Office of Audit and Evaluation Health Canada and the Public Health Agency of Canada 2016: 23).

The Secretariat managed interview arrangements, including the presence of Elders or translators. The Secretariat would also arrange ceremonies requested by survivors. Its website contained helpful information about IAP procedures, including a useful and straightforward video on the interview process. To provide additional support and outreach work, the Secretariat partnered with Indigenous organisations. For example, the Secretariat funded Indigenous organisations to provide financial planning workshops (CA Interview 7).

Legal representation was strongly recommended. To protect survivors from the associated costs, IRSSA capped contingency fees at 30 per cent of the survivor’s settlement. Canada would pay half of that fee, plus any reasonable disbursements. Canada was also represented by lawyers, but they were not to defend their client. Instead, the SAO assumed several survivor-oriented responsibilities. This included compiling records about alleged perpetrators, including peer abusers, and conveying any known admissions from criminal trials or prior settlements. The SAO subsumed NARA and its database and provided dossiers on each residential school. These dossiers were a summary compendium that might include a chronology of infrastructure projects, administrative changes, and significant events such as disease outbreaks or temporary closures. The dossiers described school sports and outings and population figures (where known), along with known cases of assault and complaints, a list of staff members, and their periods of employment.Footnote ¹⁰

Legal representation emerged as one of the most significant problems in the IAP. The SAO’s control over documentary evidence, including individual health, employment, and correction files; institutional staff lists; and the school narratives created conflicts of interest (Smith Reference Smith2016). That conflict was apparent in the case of St. Anne’s Residential School in Fort Albany, Ontario where a 1992 police investigation identified seventy-four suspects and charged seven people, leading to five convictions for assault and indecent assault (Barrera Reference Barrera2018). Despite repeated requests, the SAO did not provide the results of that investigation to the Secretariat (and through it, to survivors) until it was compelled by a 2014 court decision. This high-profile case reflected badly on the SAO’s reputation for fairness.

Turning from the SAO to counsel for survivors, the IAP confronted the strategic challenge that many lawyers did not have IAP-specific expertise. In response, the Secretariat ran training seminars and circulated seven editions of the Desk Guide for Legal Counsel, first published in 2011 (Indian Residential Schools Adjudication Secretariat 2019). The Desk Guide introduced counsel to their role in the process and was supplemented in 2012 by the Expectations of Legal Practice in the IAP, amended in 2013 (Indian Residential Schools Adjudication Secretariat 2013b).

Many lawyers worked hard with claimants, with some renouncing all fees from survivors and contenting themselves with the government’s contribution. Still, the actions of some tarnished the good work of many. Delays occurred when lawyers took on too many clients, while others, with their fees guaranteed, de-prioritised IAP claims (Indian Residential Schools Adjudication Secretariat 2012: 8). Lawyers arrived at interviews unprepared, without meeting survivors beforehand, and obstructed survivors’ access to support services. Venal lawyers exploited vulnerable clients. Some overcharged their clients by not discounting Canada’s contribution. Between 2007 and 2009, adjudicators reviewed 50 per cent of cases, and reduced legal fees in around 80 per cent of those reviewed (Indian Residential Schools Adjudication Secretariat 2010: 17). Worse lawyers provided survivors with usurious loans, secured against forthcoming settlements. Others encouraged their clients to use ‘form filler’ agencies to complete their applications with generic information. Those agencies charged survivors for the service, then with much of the paperwork done for them, the lawyer would charge their full fee nevertheless. Unconscionable lawyers recruited survivors, then pushed them into using form-filler agencies in which the lawyers themselves had an interest. Although only a minority of lawyers engaged in malpractice, their adept harvesting of clients affected large numbers (Miller Reference Miller2017: 179). One firm headed by David Blott represented more than 5,600 survivors, all of whom had to get new representation after Blott was disbarred in 2012.

A better result emerged from the ‘group process’ wherein survivors were funded to collaborate with and support each other. Groups needed to share a salient attribute, which might be attendance at the same school or residence in a shared community. Interviews remained individuated but the funding supported traditional ceremonies, such as sweats or pow-wows, community workshops with therapists or Elders, and personal development such as financial literacy or parenting training. The Secretariat received applications and awarded funding to groups. The number of group IAPs steadily increased throughout the programme. By 2017–2018 twenty groups comprised of 285 claimants had been approved for CDN$997,500 in funding to help navigate the challenging IAP process in a more culturally appropriate mode (Indian Residential Schools Adjudication Secretariat 2018a: 26).

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Reflecting on the database of prior decisions, adjudicators assessed claims using four matrices prescribed by IRSSA. Each calculation was independent and the results were then aggregated. The first step scored acts of abuse according to severity (Appendix 3.8). Here, importantly, the scoring of injurious acts was not cumulative, instead the scores reflected the most severe injury described. Next, the adjudicator assessed harmful consequences (Appendix 3.9). The third step assessed aggravating factors, including, for example, the use of racist insults or violence in the course of abuse (Appendix 3.10). The total aggravating factors would then inflate the point total derived from abuse and consequential harms as follows: (Act Points + Harm Points) x (Aggravating percent x 100). The final step concerned ‘loss of opportunity’, defined as an inability to obtain and retain employment and to undertake or complete education (Appendix 3.12). The final settlement value (plus any funding for future care) was derived from the sum of the four assessments (Appendix 3.13). The maximum total available points was 123 and the maximum settlement value was CDN$275,000 (excepting actual income claims). Both applicants and the SAO could appeal to the chief adjudicator on procedural questions. Survivors could appeal on errors of fact for review by a second adjudicator. Any party could appeal to the courts; however, the courts heard these cases with caution (Coughlan and Thompson Reference Coughlan and Thompson2018). Their hesitancy was strategic, IRSSA was to replace, not stimulate, litigation.

After thirteen years of operation, the IAP closed on 31 March 2021. IRSSA committed Canada to process 2,500 IAP claims per year. But although higher-than-expected numbers contributed to initial delays, the IAP met that target between 2007 and 2016, with a 2012 high of 4,677 decisions and negotiated settlements. The average claim took twenty-one months (Miller Reference Miller2017: 175). Originally budgeted for CDN$960 million, the IAP paid CDN$3.23 billion to 27,846 survivors, issued by cheque to the survivor’s counsel (Independent Assessment Process Oversight Committee 2021: 8, 88). The success rate of received applications was 82 per cent. The mean average payment was CDN$91,478.

In total, the IAP cost Canada around CDN$4 billion (Independent Assessment Process Oversight Committee 2021: 60). That figure excludes monies spent by state bodies other than IRSRC.

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Canada’s IRSSA created a flexible set of three very different programmes that engaged the same survivor population through an overlapping set of institutions. These programmes were large, expensive, and high profile. A common implementation theme is the importance of local support and services. That local focus, and its Indigenous character, stands in sharp contrast to the New Zealand’s Historic Claims Process, addressed in the next chapter.

7.1 Introduction

This chapter focuses on the monetary redress programme operated by the Ministry of Social Development (MSD) between 2006 and 2017. With 2,643 claims and 1,315 settlements, the Historic Claims Process (HCP) was the largest state redress programme in New Zealand (Ministry of Social Development 2018b).Footnote ¹ While MSD continues to provide redress, this chapter concerns the HCP as it was prior to the 1 February 2018 announcement of a Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care. That inquiry prompted transformative changes to the state’s redress strategy.

In 2003 the government learnt that people were approaching the Salvation Army for redress of abuse in care. A number of those survivors had been state wards (NZ Interview 6). Looking for a cost-effective and survivor-focussed alternative to litigation, in 2007, MSD consulted with nine survivors to find out what they might want in a redress process (The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2021: 157). That feedback shaped an initial framework offering three key redress outcomes: an understanding of the survivor’s experience in care, a formal acknowledgement and/or apology, and monetary payments. That framework coalesced in 2008 into a two-pronged response, the Confidential Listening and Assistance Service (CLAS) and the Crown Litigation Strategy.

CLAS heard survivor testimony with a therapeutic purpose. Its purposes were to listen to survivors, acknowledge their experiences, identify issues with which CLAS could assist, and develop a forward-looking plan that might include access to personal records, counselling, or assistance with housing and employment training (NZ Interview 6). CLAS did not accept new registrations after 2013 and closed in 2015 having heard testimony from 1,103 survivors (Henwood Reference Henwood2015: 49). The second component to New Zealand’s response concerned monetary redress. The Crown Litigation Strategy of 2008 had three points:

1. (1) [State] agencies will seek to resolve grievances early and directly with an individual to the extent practicable

2. (2) the Crown will endeavour to settle meritorious claims

3. (3) claims that do proceed to a court hearing because they cannot be resolved will be defended (Ministry of Social Development 2014: 4).

Point (3) expressed the Crown’s commitment to a strong legal defence, which meant that out-of-court resolution was the only effective option for survivors (Cooper Reference Cooper2017). Whereas other exemplars were established to remove the survivors’ claims from the courts, MSD’s programme developed in dialogue with ongoing litigation, and until the 2014–2015 Fast Track Process (see Section 7.2), did not assume clear remedial responsibility for a defined set of claims. Instead, MSD developed a mutable set of conventional procedures for semi-structured negotiation as an adjunct to litigation. As the number of cases grew, these procedures coalesced into a programme with a quasi-independent remit, which became the responsibility of the MSD’s Historic Claims Team (the Team).Footnote ²

7.2 The Historic Claims Process

Founded in 2004, staff numbers in the Team grew slowly in response to the increasing number of claims. Staff turnover was relatively low. In 2017, the Team had slightly fewer than thirty members. These included a programme manager (a lawyer), one senior analyst, eleven senior advisors who managed claims, four administrators, and ten staff working with records (NZ Interview 6). All were permanent civil servants. The Team’s location within MSD created significant concerns regarding its impartiality. The former chair of CLAS, Judge Henwood, observes,

Advisors were often long-serving employees of MSD and lawyers in the programme were employed by MSD to provide it with legal services – the ministry was their client. Meritorious claims appear to have failed due to that lack of impartiality (NZ Interviews 2 and 8) and important evidence was withheld from survivors (Young Reference Young2020: 424–25). Moreover, the programme discriminated against survivors when that served political interests. For example, the claims of survivors convicted of serious crimes were delayed for several years because officials were worried the government would be criticised if they were found to be giving money to criminals (Cooper and Hill Reference Cooper and Hill2020: 133). There was no effective independent oversight of the process. A review by the New Zealand Human Rights Commission was blocked by the government and its critical 2011 report was never published (Human Rights Commission 2011).Footnote ³

The redress programme had limited public exposure. There was no public advertising and no regular contact with survivor groups (NZ Interviews 1, 6 & 8). A government website was the primary public information source. Most applicants heard about the claims process through survivor networks, from a service agency, or from CLAS (Allen and Clarke Policy and Regulatory Specialists Limited 2018: 2; Ministry of Social Development 2018c: 11). The programme’s limited visibility was, in part, a technique to mitigate the ever-growing backlog of claims: the programme did not have the capacity or budget to manage more applicants (NZ Interview 6).

There was no application form. Survivors without legal representation lodged their claims by telephoning the Team and speaking with an advisor. The advisor noted when and where the survivor was in care, what injuries they experienced, and if the claim should be prioritised because the survivor was very ill or suicidal. Alternatively, the survivor’s lawyer could engage with MSD directly or file a civil claim in court. A small Wellington firm, Cooper Legal, represented nearly all survivors who retained counsel, representing slightly more than half of all successful claimants. Cooper Legal would first interview the survivor, then notify MSD of the claim and request relevant records pertaining to the survivor – a filed claim would go through a formal process of legal disclosure. After receiving the records, counsel would prepare a ‘Letter of Offer’ describing the survivor’s claim, the supporting evidence, and a desired settlement value. Cooper Legal used litigation strategically to help their clients obtain redress. It was not a direct avenue to compensation.

In 2013, MSD was told that incoming claims had peaked and that it could expect a further 482 claims before 2030 – an average of seventeen per year (Webber Reference Webber2013: 15). This proved inaccurate. The flow of applications has progressively increased. The year 2008 was the first year the programme received more than 100 claims; 200 claims-per year was exceeded in 2011; 300 per year in 2015; and 2017 saw 431 applications (Ministry of Social Development 2018b). During that period, the balance of filed and unfiled claims shifted. Until 2009, claims tended to be filed in court, after that the majority were unfiled: as of 31 December 2017, there were 2,008 unfiled and 635 filed claims (Ministry of Social Development 2018b). I could not find 2017 data on gender; however, 2020 data states that 71 per cent of claimants were male and 22 per cent were female (The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2020b: 175). Between 50 to 60 per cent of claimants were Māori (Young Reference Young2017: 8).

Without formal eligibility criteria, the programme’s conventions developed and changed over time and the Team used different procedures for different claims. Speaking very generally, survivors must have been alive to lodge a claim, but if they died subsequently, their estates could receive payment. Eligible claims were not limited to specific time periods. While New Zealand originally described pre-1993 injuries as historic, the Team used the same procedure for later injuries. Many claimants were placed in residential institutions. However, the HCP also managed claims from survivors of foster care and other situations, potentially covering anyone who had been legally taken into the care, custody, or guardianship of MSD (or its predecessors), or when the person or family had been under state supervision. In short, the ambit of eligibility was determined by a sense of whom MSD was responsible for in social work practice.

The wide ambit of potentially eligible claimants was matched by a relatively narrow ambit of redressable injuries. Only injurious acts were eligible. These tended to be interactional acts of, for example, sexual abuse, or the inappropriate use of isolation. In more recent years, survivors began to claim for violations of New Zealand’s Bill of Rights (1990), including, for example, the right not to be subject to torture or to unreasonable search and seizure and those claims are not subject to statutory limits. Most consequential harms were not redressable, which meant that the programme excluded the effects of injurious cultural removal, loss of personal identity, and the severance of family relationships.Footnote ⁴ Recall that Māori constitute the majority of survivors, and out-of-home care systemically disconnected them from their cultural and family groups (Ministry of Social Development 2018c: 7). This is an extraordinarily significant omission: it is impossible to overstate the importance of family connections (whakapapa) in Māori culture (Collins Reference Collins2011).

MSD must have been responsible for the injurious act(s) in some way. For example, abuse by MSD staff would be a relevant injury. But injuries inflicted by others, such as another child, were only redressable if they resulted from a practice failure on the part of MSD. The weaker the causal connection between the injury and actions of MSD staff, the harder it was for claimants to obtain redress. Staff actions were judged according to contemporary standards. However, one interviewee stressed that contemporary standards could be what was permitted, even when permitted practice violated contemporary regulations (NZ Interview 2). That form of normalisation could also reduce settlement values.

The programme sought to be highly personalised, holistically assessing claims through a survivor-oriented process that was modelled on social work. The investigation assessed what abuses occurred and whether the state had legal responsibility for the survivor’s welfare at the time. The advisor began by compiling the survivor’s records. The next phase of the process, for unrepresented claimants, was an evidentiary interview with two advisors.Footnote ⁵ These interviews were central to MSD’s understanding of the process as survivor-oriented (Young Reference Young2017: 3). Survivors could have a support person and choose where the meeting occurred. Common venues included marae, community meeting halls, prisons, and government offices. Interviews could take several hours, they were audio-recorded and survivors were encouraged to describe their injurious experiences in detail. Ideally, advisors would listen, ask probing questions, and give survivors advice on how to access personal records and where they could get counselling or other support. After the interview, advisors would pursue any further relevant documents and, potentially, interview alleged perpetrators and other informants. If MSD staff were involved as alleged perpetrators, they received NZD$2,000 for legal advice. Survivors were welcome to supply advisors with further information after the meeting.

Advisors needed to identify social work practice that did not meet contemporary legislative and policy standards. To determine what laws and policies applied contemporaneously, MSD contracted Wendy Parker to report on legal and practice standards between 1950 and 1994. Her report was supplemented by dossiers on fifteen institutions. As Parker stresses, she relied on institutional records only and did not use survivor testimony (Parker Reference Parker2006: 8–9). However, as new claims were received and investigated, the Team progressively developed a database on institutions, survivors, and alleged perpetrators.

The advisor would develop a provisional assessment, including a proposed payment value. That assessment then underwent a secondary review by the programme manager, tertiary review by the chief legal advisor, and, finally, approval by the ministry’s deputy chief executive. In filed cases, MSD or Crown lawyers would also be involved. Because assessment was personalised and detailed, and involved multiple reviews, it was also slow: most cases took four to eight weeks to investigate (2020: 533). Staffing limitations led to backlogs (Winter Reference Winter2018a: 15). By early 2018, claims were taking around four years to process (Allen and Clarke Policy and Regulatory Specialists Limited 2018: 1). Some of these delays also resulted from underfunding. The HCP did not have the budget it needed to resolve claims.

To address the growing backlog, in 2013 MSD developed a supplementary ‘Fast Track Process’. The Fast Track Process was optional and only available for claims lodged as of 31 December 2014. The Fast Track Process would accept claims on face value, if advisors could establish that the state was responsible for the survivor at the time of the relevant injuries; that the survivor was where the abuse occurred at the time alleged; and, that any named perpetrator could have been where the injury occurred (Hrstich-Meyer Reference Hrstich-Meyer2020: 22). The Fast Track Process also narrowed the ambit of redress by excluding Bill of Rights claims. The Fast Track Process made 600 payments, 46 per cent of all claims settled before 31 December 2018.

New Zealand’s redress programme confronted persistent complaints of non-transparency. Because procedures constantly changed, it was difficult to know how assessment would be conducted (NZ Interview 2). ‘[T]he rules were always changing and … there was inconsistency when interpreting the rules’ (Ministry of Social Development 2018c: 17). While represented applicants could get advice from their lawyers, unrepresented survivors were much worse off. In early 2018, Allen and Clarke found

Evidentiary standards are an example. The investigation sought to verify claims. In general, its evidentiary standard was that ‘the Ministry needed to have a reasonable belief’ that the survivor was injured and that it was reasonable to hold MSD responsible (Hrstich-Meyer Reference Hrstich-Meyer2020: 8). But the HCP applied evidentiary standards inconsistently (NZ Interview 2). Moreover, it appears that MSD did not always follow the procedure outlined above. For example, some survivors were told that they did not need to describe their injurious experiences during the interview, only to have that lack of detail detract from their payment values (Cooper and Hill Reference Cooper and Hill2020: 79).

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Support for survivors was underdeveloped. Until it closed in 2015, CLAS was, apart from Cooper Legal, the primary source of support. CLAS brokered counselling, helped survivors obtain personal records, and supported survivors in reading those files. Survivors could submit recordings of their CLAS interview to the HCP and CLAS referred 514 survivors to the programme (Hrstich-Meyer Reference Hrstich-Meyer2017: 8). MSD did not engage with survivors’ organisations as part of its implementation strategy (NZ Interview 6). Indeed, the programme’s failure to engage with Māori organisations prompted a 2017 Waitangi Tribunal complaint (Te Mata Law 2017). That complaint criticised the cultural appropriateness of the programme. During the 2006–2017 period, there was only one Māori advisor in the Team and they left prior to 2017 (NZ Interview 6). As a result, Māori survivors did not ‘feel their cultural needs were recognised or catered for’ (Ministry of Social Development 2018c: 9). That failure ‘reinforced [the survivors’] sense of isolation, helplessness, loss of identity and loss of connection that occurred as a result of being in care’ (Ministry of Social Development 2018c: 9).

CLAS might refer survivors to Cooper Legal. Better off survivors paid their legal fees, shouldering the risk that the cost of the process would exceed their settlement (which it sometimes did). However, most survivors relied on legal aid. Each survivor needed to establish their legal aid eligibility independently and funding was not guaranteed. Indeed, after the Crown Litigation Strategy was announced in 2008, New Zealand began to withdraw legal aid from all non-recent claims (Cooper and Hill Reference Cooper and Hill2020: 41–52). Cooper Legal fought that decision in the courts until 2013, when it was agreed that MSD would pay around 66 per cent of the reasonable costs of any legal aid debt with the remainder being written-off by Legal Aid (NZ Interview 2). As of 2017, the cost to MSD of this arrangement was slightly more than NZD$3.8 million, a mean average of NZD$10,445 across 365 claims (Ministry of Social Development 2018b).

MSD funded psychological counselling, usually offering six initial sessions, with a total cost (for all survivors) of around NZD$106,000 by 2019 (Hrstich-Meyer Reference Hrstich-Meyer2020: 23). Additional counselling could be obtained through ACC (see Footnote footnote 4 in this chapter). However, the offer of counselling might emerge late in the process, and a dearth of suitable counsellors created waiting lists (NZ Interviews 1 and 2). Very few survivors used professional medical or psychological assessments as evidence in their applications (NZ Interview 2). As there was no funding for such components, and redress excluded consequential harms, professional assessment was not cost-effective. There was no dedicated financial advice service for survivors, although advisors might direct survivors to public advice services (NZ Interview 6).

There was no legislative or policy initiative to facilitate records access for survivors (NZ Interview 5). After CLAS closed, Cooper Legal became the only independent service with specialist records expertise. For unrepresented claimants, MSD’s Team managed documentary research. A 2017 survey of 422 survivors indicated that 90 per cent of respondents believed that they would benefit from improved support in accessing records (Stanley et al. Reference Stanley, Cooper, Noonan and Erueti2018: unpaginated). Record searches were complex, usually involving multiple organisations and delays were normal and considerable. Although Archives New Zealand held older files, other government records are decentralised and held by each ministry, often at the regional level. Unrepresented survivors might not know what records exist and what they could expect to obtain (NZ Interview 2). And those records were often in poor condition. ‘[F]iles were often incomplete, irretrievable and in some cases, missing’ (Ministry of Social Development 2018c: 13). To illustrate, when MSD sought twenty-eight staff files for a non-recent abuse case in 2006, only six could be found (Young Reference Young2020: 294). MSD would destroy more employee records in 2009 (Young Reference Young2020: 293). Moreover, there were problems with the records provided, including cases wherein MSD did not provide all relevant records (Cooper Reference Cooper2017; NZ Interview 8). Concerns regarding the redaction of third-party information, including the identities of family members, were prominent and widespread (Ministry of Social Development 2018c: 13). At times, the Team redacted according to the rule ‘if in doubt, leave it out’ (Young Reference Young2020: 441–42). Redaction could make it harder to settle a case or obtain higher settlement figures. Moreover, it prevented the survivor from getting information about their cultural and family background, a point of particular difficulty for Māori survivors seeking cultural reconnections (Ministry of Social Development 2018c: 9).

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The flexible and holistic character of the process meant that outcomes differed. Building on the programme’s social work ethos, some survivors received ad hoc assistance with housing and education. In nine cases, when the Team could not substantiate a redress claim, MSD offered a small wellness payment in lieu of a zero award. However, the programme’s holistic character diminished as the volume of claims increased (Young Reference Young2020: 342). By December 2017, 1,315 survivors had received NZD$25,147,184 in payments, a mean average of NZD$19,123 (Ministry of Social Development 2018a). While a few (152) payments exceeded NZD$30,000, most (89 per cent) were below NZD$20,000 (Personal communication, from Anonymous, 26 July 2017). As the value of the settlement increased, more approvals were needed. Civil servants could make ex gratia payments up to NZD$30,000, but higher figures required ministerial authority – a procedural hurdle that may have depressed some payment values. Administering the programme cost NZD$41,103,134 between 2007 and 2019 (MacPherson Reference MacPherson2020: 23).Footnote ⁶

MSD suggests that settlement values were ‘broadly in line with what a court might award’ (Hrstich-Meyer Reference Hrstich-Meyer2017: 2). Other observers disagree (Cooper Legal 2013: 2; The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2021: 153). Before 2018, the programme did not publish information on how it determined settlement values. It is now known that once the ministry had paid an initial set of claims, subsequent values were derived by comparing new cases with three to five previous offers (Hrstich-Meyer Reference Hrstich-Meyer2020: 10). That practice crystallised in the Fast Track Process’s six-row severity matrix (Appendix 3.14), which the Team created by analysing its settlement practice. The Fast Track Process was subject to a forced distribution to cap its expenditure to NZD$26 million (‘Linda Ljubica Hrstich-Meyer Transcript’ Reference Hrstich-Meyer2020: 585–86). It appears that, on average, payments made through the Fast Track Process were around NZD$5,000 less than those available through the standard process (‘Linda Ljubica Hrstich-Meyer Transcript’ Reference Hrstich-Meyer2020: 588–89).

Whereas counsel received settlement offers for represented survivors, offers for unrepresented applicants often came through a second face-to-face interview. In the second interview the advisor provided information to help the survivor understand their care experience (NZ Interview 6). The advisor might offer a verbal apology along with the monetary offer. Given the power disparities involved, many survivors experienced this as ‘take it or leave it’ proposal (NZ Interview 2). If a represented claimant rejected the proposal and subsequent negotiation failed, then the claim might proceed to a judicial settlement conference. In 2015, an Intractable Claims Process, using third party mediation, was to begin, but no claims were heard before the process was cancelled by MSD (Cooper and Hill Reference Cooper and Hill2020: 84). In the end, should a survivor disagree with MSD’s proposed payment, they might have recourse to the courts, where they were likely to fail. Procedural review was similarly impuissant. A 2016 court ruling concluded that the programme sat within the Crown’s prerogative and its processes were non-justiciable (XY And Others v. The Attorney General 2016).

Unrepresented survivors would receive some money for legal advice at the point of settlement. The total cost of that advice was NZD$311,321 as of 31 December 2017 for 950 survivors, giving a mean average of NZD$889 (Ministry of Social Development 2018b). As intimated above, payments with a value of under NZD$30,000 were ex gratia and sometimes (but not always) were a full and final settlement waiving the survivors’ rights. The settlement included an apology letter describing the survivor’s care history and the injurious experiences that MSD accepted. Survivors could ask for specific material to be included or excluded from the letter. The apology was usually signed by the chief executive, although the minister of social development would sign the letter if the survivor asked (Price 2016).

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New Zealand’s HCP was the least formalised and, consequentially, the least independent of the ten exemplar programmes. And while it avoided some of the budgetary exorbitances associated with larger, more legalistic programmes, it shared common problems with backlogs, partiality, and difficult records access. It was also significantly less efficient than most other programmes. The HCP was the only exemplar that cost more to administer than it paid to survivors.