By Aaron Smale for Newsroom.
Survivors of abuse in state care have been blindsided by the Royal Commission investigating their treatment holding 'mock' interviews with them about their experiences as a practice run ahead of formal proceedings of the inquiry.
The meetings have involved more than 40 of the survivors and some did not understand that their sensitive contributions were part of a pre-inquiry 'pilot' by the commission which will not be included as evidence.
One survivor of state abuse says the chairman of the Royal Commission, Sir Anand Satyanand, fell asleep twice while he was speaking to him in such a meeting.
Survivor Milton Lake was contacted by phone by a staff member from the Royal Commission and asked to take part in the "early private sessions."
Lake was sent to Epuni Boys Home after getting into a fight at school and went from there to Hokio Beach School and the institution at Kohitere. He spent three years in total in these homes where there was regularly violence. He was also put on medication to sedate him and spent two and half months in solitary confinement when he was at Kohitere.
Soon after he left the welfare homes he joined the Black Power gang at the age of 15 and was later one of the founding members of the Nomads.
"When they [the Royal Commission] got in touch with me, they asked me if I wanted to be a part of putting over my story about the abuse. I thought, yes, great, I'd love to be part of it. I wanted to try and get some stories together to work this thing out towards a better outcome."
He then received a letter that confirmed the appointment, stating that it would help the commission "fine-tune its processes." The letter described the meeting as part of "early private sessions."
But in the accompanying consent form it says the sessions will not be evidence before the commission and were not a hearing of the commission. It says the commission will not make decisions based on the information provided, unless it is given again later at another hearing. Survivors who participated in the private sessions were not permitted to record the sessions but the commission did record them.
However, Lake says he became confused about the purpose of the sessions after a conversation with a friend and fellow survivor Tyrone Marks. Marks had several conversations with commissioner Andrew Erueti, who repeatedly referred to the sessions as "mock". In another conversation he referred to them as "trial."
In a newsletter from the Royal Commission the sessions were referred to as a "pilot" in which so far 40 survivors had participated.
Lake says he was unsettled when he heard that a commissioner had described them as "mock."
"I was taken back, I was quite pissed off. I really was. Because that was another form of abuse and another form of distrust. And once again, getting used.
"I went through it [the abuse in welfare homes]. They never did. I want to be part of a good thing for this nation, especially when it's concerning this.
"I don't want to be in a position where there is mistrust coming back in between these two parties. Us and them. I do not want to be going down that road where, 'eh? What's that? Really? 'But Milton, you turned around and signed that bit of paper'
"I did not think they'd be putting a snow job over me or others that are a part of these interviews.
"I do not want to be leading a charge thinking it's going down the right road, when all the time it isn't at all. I don't need and I don't want to be snow jobbed again 50-odd years later.
"Damn waste of money if that's how it is. Time and money."
A spokesperson from the Royal Commission repeatedly said over three days that Sir Anand was unavailable for an interview. The spokesperson was asked whether the format of the sessions was assessed by any independent experts on the issues, such as informed consent, the ethics of the proposed process, and whether it had the potential to repeatedly traumatise survivors.
The spokesperson did not answer directly but said, "the commission sought advice and considered the approach taken by inquiries in other jurisdictions and found different approaches being taken for similar work." Survivors were consulted on the process.
When Lake arrived for the meeting the original appointment was at 10am but it didn't get started until about an hour later. He was aware that others had meetings after him so he felt under pressure to get across his story and what he thought the outcome should be.
"By the time we got down to the guts of everything, time was over."
The sessions are to identify topics and themes for further investigation.
During the session with Sir Anand and commissioner Sandra Alofivae - which ran for about an hour and half - Lake says Sir Anand fell asleep.
"I'm pretty sure I caught him on the nod twice. And he had to excuse himself and go to the toilet twice."
"I don't know what his health situation is about. Age comes to us all. I don't think it was deliberate. We're all getting on."
But he thought it was disrespectful.
"I'm letting them see our world. I would think I'd have their attention because to me that is an honour."
A spokesperson for the Royal Commission said "a review of our private session records shows this did not occur."
But Lake is adamant: "I saw what I saw. I know what I witnessed."
MSD and Crown Law have often denied abuse allegations because they say there are no records.
Survivor Paora Moyle did not attend the pilot sessions, but she has met seven times with the Royal Commission and has repeatedly raised concerns over how the commission is engaging with survivors and a number of other issues.
She says she also witnessed Sir Anand falling asleep.
"At two of those hui Sir Anand fell asleep whilst survivors were talking and woke up catching the end of our korero and gave some random comment to appear as though he was present throughout our hui."
A Māori survivor Moyle knows, who did not wish to be named, attended the pilot meetings and was highly concerned with the way they were run.
"Recently I had a mock interview where I was helped to prepare my testimony by a wellbeing worker who appeared to have as much knowledge of trauma as my big toe. Where do they get these people from with no experience at all of engaging with survivors?. Like we are stupid people that need to be mollycoddled. She didn't even try to form any connection with me beforehand, just on the day stuff."
The person says they were only given information on the day about the pilot meeting.
"Why a pilot or practice run? Also, I had no information beforehand, no consent forms or process whereby I could seek answers or even any reassurance. I felt like I was being used."
Milton Lake says a lot of the problems successive governments are trying to address have their origins in the abuse that happened in welfare homes.
"A lot of the increase in gangs and prisons stems from those homes. A lot of the leaders in those powerhouse units like the Mob and Black Power came from those places. They went through those places."
He also says the inclusion of the church in the inquiry has muddied the waters about what it is looking at.
"The abuse on the religious side is a totally different kaupapa altogether. That had nothing to do with us. What happened with the state was totally different. It wasn't our parents who took us through those doors. The whole world knows what happened in the churches. It's global."
He says many of the people he went through welfare homes with have trouble talking about their experiences and are deeply distrustful.
Lake had further contact with staff from the commission after he found out more about the sessions and he queried whether the meetings "were the real thing" and was assured they were.
The Royal Commission's terms of reference refer to treating personal information from survivors according to principles of sensitivity and "informed consent."
However, the private sessions are not the only issue that is frustrating survivors.
Tyrone Marks has been selected for the survivors' advisory panel for the Royal Commission. He has training as a counsellor. He says there is a bigger problem and that is the lack of trust survivors have in the Royal Commission.
He says it has been nearly 18 months since the Royal Commission was announced and the survivors' panel has only recently been named.
"They're so slow and behind, how are they going to do all this work?"
"We're supposed to be the main stakeholders. We should be first but we're last. At the moment the advisory panel, the way it's being structured, it's tokenism. The other survivors are expecting us [the panel] to go ahead of them and prepare the way but we can't do that when we're only meeting four times a year.
"Who better to engage with survivors than survivors. The first face they want to see when they go in is another survivor, not a commissioner or anyone else. It's not hard to work out.
"They should give us the operational budget to do this work."
"The way they've set this up that's all we are, advisers. We've got no power, we only advise. How can we advise every three months? What are we advising on?"
He says the commission has employed staff on high salaries who have no idea what they're doing and no real understanding of survivors.
"We're sick of giving them all this intel and advice, then they just keep it to themselves and go the other way. They go on the other side of the field and kick the ball that way. Our advice means shit."
Marks and another survivor met the commissioners earlier this year and raised a number of questions about how the Royal Commission was going to engage with survivors. They sent a list of questions before the meeting. They didn't think their questions were answered during the meeting so they sent a letter to the commission asking the same questions. They never received a reply.
Before the survivors advisory panel was appointed, the Royal Commission employed several "ambassadors".
One of the ambassadors, Betty Sio, is currently facing charges laid by the Serious Fraud Office late last year. She has pleaded not guilty. It is understood she is not a survivor.
The spokesperson for the Royal Commission would not comment on individual employment contracts when asked about Betty Sio, but said that "we undertake due diligence checks of all individuals who wish to support or provide services to the Royal Commission... The Secretariat followed appropriate procurement processes to bring ambassadors on board."
Furthermore, Commissioner Andrew Erueti, a lecturer at the University of Auckland law school, said in his declaration on conflicts of interest that he had "provided legal advice to legal counsel" for a treaty claim about state abuse.
However, drafts of that claim show he was listed as "legal counsel" either individually or alongside another lawyer representing the case. He was also listed as counsel assisting. The first drafts of the claim were written by him and the other lawyer was involved in the formatting of the claim when it was already well developed.
Erueti's name does not appear on the version that was filed with the Tribunal. He does not have a practising certificate.
The commission spokesperson said "at the time of filing his conflict of interest declaration, Andrew was not an adviser to the treaty claim into State Abuse."
An OIA request was sent to Tracey Martin, the Minister for Internal Affairs and for Children. Information was requested about advice she received from the Ministry of Social Development and/or Crown Law about the Royal Commission.
In her reply she said there wasn't any correspondence between her office and Crown Law about the Royal Commission.
However, Crown Law employee Natalie Pierce was seconded to Internal Affairs for all of last year. Internal Affairs is the ministry responsible for setting up the Royal Commission. Pierce led the establishment unit for the Royal Commission, which included involvement in the terms of reference and selecting the commissioners. According to her LinkedIn profile she was Principal Adviser: Project Lead.
Tracey Martin was asked to confirm this but so far has not responded.
Crown Law has been behind the historical claims process run by MSD that has attracted repeated criticism from state abuse victims and their advocates. It is likely to come under scrutiny by the Royal Commission.