Police dog handler set attack dog on pregnant woman, seriously injuring her

Police dog handler set attack dog on pregnant woman, seriously injuring her

The IPCA has found that a Police dog handler used unjustified and excessive force when he set an attack dog on a pregnant woman, seriously injuring her leg, in February 2021.

Ms Z sustained a serious dog bite injury that included multiple punctures and lacerations, blood loss, missing tissue, and nerve damage.

IPCA – Unjustified use of force in Christchurch

A Police dog handler, called Officer A in the report, located a couple wanted for a series of burglaries in a stolen car. He initiated a pursuit, which the IPCA ruled was an inappropriate tactic in the circumstances.

Police initially laid charges that the driver rammed a police car during this pursuit, but later withdrew the charges. The IPCA believes the dog handler lied about this to cover up his own wrongdoing:

Police initially charged the man for driving into the officer’s Police car. However, they later realised the damage to the cars was not consistent with the collision as described by the officer so the charges were withdrawn. We believe the officer deliberately drove into Mr Y’s car, in breach of policy, and his subsequent statements were false.

IPCA – Unjustified use of force in Christchurch

The pursuit ended when the stolen car was stopped using road spikes. When the car’s occupants then fled on foot, the dog handler used his dog to track them.

His dog let him to a hedge, where he released his attack dog to bite whoever was hiding behind it.

The woman who was attacked, called Ms Z in the report, says she had surrendered and told officers she was pregnant before the attack dog was set on her. She told the IPCA she is extremely fearful of dogs because of two previous incidents where she was the victim of a dog attack.

The dog handler’s version of events differed from this. Although the IPCA noted that they had concerns about the officers’ credibility, they were not able to establish which version of events was accurate. However, the IPCA also considered whether Officer A’s behaviour would have been justified if his version of events was accurate, and decided that even in that case he would have breached Police policy by releasing his attack dog to bite someone before seeing them.

Regardless of which account is accurate, there is no denying the serious injuries that were inflicted on Ms Z by Officer A’s attack dog.

The IPCA came to the conclusion that Officer A had acted unlawfully, and that his use of force was unjustified and excessive.

However, the decision of whether or not to prosecute Officer A for this was, as always, left with NZ Police.

In NZ Police’s response to this decision, it said “Police acknowledge the findings” but that the decision was made not to lay a criminal charge against one of their own. Officer A will continue to work as a dog handler, without legal repercussions.

NZ Police said nothing in their response about Officer A lying to the IPCA. Instead, as usual, most of their response is about trying to make the officer’s unjustified and unlawful actions appear justified.

This is yet another example of NZ Police’s corruption, where they refuse to hold their own officers responsible for criminal actions. If you or I had released a trained attack dog on this woman instead of a police officer having done so, it seems all but certain that NZ Police would have laid criminal charges.

Police officer punctured a man’s lung and broke his neck, but will face no consequences

Police officer punctured a man’s lung and broke his neck, but will face no consequences

The IPCA has found that a police officer used excessive force when arresting a man in Hastings in January 2021.

As a result of the force used to arrest the man, he sustained serious injuries including a punctured right lung, fractured ribs, a fractured neck vertebrate [sic], and a cut on his scalp.

IPCA – Use of force in Hastings not justified

A Police dog handler followed Mr X because they considered he was driving “a suspicious car”. After he stopped and got out, an officer told him to stay where he was, but Mr X ran away. Police then found a rifle in his car.

Police failed to track the man at the time, but around three hours later he was spotted by the same dog handler. He told the man he was under arrest, but he ran away again. Police eventually found Mr X hiding in a skip bin in a construction site.

In the construction site, the two officers attempting to arrest Mr X both pepper sprayed him. The IPCA determined that this use of force was justified.

However, after he had been pepper sprayed the man lay face down on the ground. An officer jumped onto the man’s back, “breaking the fall with his knee”. The IPCA believes this caused significant injuries to the man including fractured ribs, a punctured lung, and a fractured neck vertebra.

While this police officer, called Officer A in the IPCA’s report, was pinning Mr X to the ground, he began punching Mr X in the head in an attempt to get Mr X to move his hands out from under his body so he could be handcuffed.

The IPCA has determined that this use of force was excessive, and unlawful:

we do not accept that Officer A reasonably believed that Mr X was fleeing or otherwise attempting to avoid arrest at that time. Officer A was therefore not justified under section 40 in jumping on Mr X as he did.

we do not accept that it was reasonable for Officer A to punch Mr X in the head several times to get him to release his arms, even believing there was a remote possibility that he could have a weapon on his person.

IPCA – Use of force in Hastings not justified

NZ Police published a statement saying they “acknowledge” the IPCA’s report, but they did not say that they accept the findings.

Despite the IPCA’s finding that Officer A broke the law, NZ Police gave no indication that they would be charging Officer A, or that he would be facing any consequences outside the courtroom. It seems as though Officer A will not face any consequences whatsoever.

NZ Police had already conducted an investigation of their own and, of course, decided that Officer A did nothing wrong. In their response to the IPCA’s findings, NZ Police merely said that the man’s severe injuries were “regrettable”, and referred to “circumstances where [officers] must resort to using force.”

This is yet another example of corruption in NZ Police. If Mr X had broken Officer A’s ribs, punctured his lung, and broke his neck, we can all be certain that NZ Police would have come down on him with the full weight of the law. But instead we see that Officer A is protected from the consequences of his unlawful actions for one simple reason – he is a police officer, and NZ Police protects their own.

Because NZ Police refuses to hold their own people responsible for abuses of power, we need to reform the law so the IPCA has the power and resources to prosecute police officers like Officer A.

The IPCA should audit NZ Police’s use of attack dogs

The IPCA should audit NZ Police’s use of attack dogs

Today, the IPCA released its investigation report into an incident in April 2021, during which a police attack dog was used against a man who violently resisted arrest for having stolen a car. The dog’s bites significantly injured the man, and he required surgery. These significant injuries led NZ Police to notify the IPCA about the incident.

The IPCA found that, in this particular case, the use of an attack dog was justified. Though in the media release accompanying the report, IPCA chair Judge Colin Doherty said:

Because of the likelihood of injury caused by a biting dog, we consider the use of a Police dog to be a significant use of force, only justifiable in specific circumstances. On its own, apprehending the driver of a stolen car will not often warrant such significant force.

IPCA Chair Judge Colin Doherty

NZ Police’s response to this report was brief, primarily just saying that NZ Police accepted the IPCA’s findings.

When I investigated NZ Police’s use of attack dogs in 2018, I found that the two most common charges laid following the use of an attack dog were “traffic offences” and “car conversion etc”.

Also, 76% of the incidents where NZ Police set attack dogs on people in 2018, those people were below the “assaultive” threshold. Most of the time, they were recorded as “active resistant”, meaning they were pushing away, pulling away, or running away.

Using attack dogs against people who are unarmed and running away is the norm for NZ Police’s dog handlers, and often they had stolen a car.

So, if the IPCA considers that “On its own, apprehending the driver of a stolen car will not often warrant such significant force [as the use of a Police dog]”, then I can’t help but wonder how many unreported incidents where police set attack dogs on people would be found to be unjustified if investigated by the IPCA.

NZ Police has shown a clear unwillingness to address the harms done by their attack dog programme. In their annual use of force reports, they typically dismiss the incredibly high injury rate of their attack dogs rather than acknowledging it as a real concern. The majority of moderate and serious injuries caused by police use of force are inflicted by their attack dogs.

In this case, NZ Police reported the incident to the IPCA themselves. I don’t know how often this happens for incidents where attack dogs were used. Based on the number of investigation reports published by the IPCA, it seems unlikely to me that NZ Police report every incident during which one of their attack dogs seriously injures someone. Though it may instead be that the IPCA either doesn’t publish its findings for many of these investigations or that it doesn’t always investigate these incidents when they’re reported.

Based on Judge Doherty’s statement and my analysis of NZ Police’s data regarding their use of attack dogs, I think it’s likely that the IPCA would find many unreported uses of attack dogs by NZ Police to have not been justified under the law. Considering the significant harm done by this tactical option, I’d like to see the IPCA conduct an audit NZ Police’s use of attack dogs.

Police officer assaulted youth over cigarettes

Police officer assaulted youth over cigarettes

In July 2019, an off-duty police officer followed a 14 year old boy who he suspected of having stolen a packet of cigarettes. When he caught up with the boy and his friend, he grabbed the boy’s friend by the collar, then punched the first boy twice in the face, knocking him to the ground.

The boy’s condition deteriorated after this, and he had to be taken to hospital because of a suspected fractured eye socket.

The boy also said the officer kicked him while he was on the ground.

This incident was unusual in that NZ Police charged their officer with injuring with intent to injure. However, the charge was dismissed by the Crown after two jury trials in 2020 and 2021 during which the jury could not reach a verdict.

Though it’s not clear why the jury couldn’t reach a verdict in these trials, New Zealand’s culture of respect and deference to police officers makes it difficult to hold police to account for abusing their powers, even in the rare case in which NZ Police decides to charge one of their officers with a crime.

Today, the IPCA has released its report into the incident, which had been delayed due to the court proceedings. In it, they found that:

Officer A had no legal justification to punch Mr X.

The [Independent Police Conduct] Authority is unable to determine whether Officer A kicked Mr X.

IPCA – Off-duty Police officer punches youth who stole cigarettes

In its response, NZ Police said “Police acknowledge and accept these findings”. In addition to the court action, NZ Police conducted an employment investigation, resulting in a finding of serious misconduct. NZ Police says the officer is no longer employed by NZ Police, though it’s not clear if he resigned or if he was fired.

NZ Police has special rules for off-duty interventions. A version of this Police Manual chapter was released under the OIA in November 2019 and in July 2020, and is available on policepolicy.nz: Off-duty interventions

This “Officer A” has also had his identity kept secret, though as far as I can tell from the statements from the IPCA and NZ Police, there doesn’t appear to have been any name suppression involved. Rather, this seems like another example of the culture of secrecy surrounding police misconduct, where the identities of police officers who abuse their power are kept secret forever.

NZ Police refuse to prosecute officer for unjustified kick to the head

NZ Police refuse to prosecute officer for unjustified kick to the head

In March 2021, two police officers tried to arrest a man for disorderly behaviour. During the arrest, the man kicked both the officers in the head while he was on the ground. After one of the officers was kicked, he kicked the man back in the head, knocking his head against the driveway and leaving him unresponsive for 30 seconds.

The IPCA has ruled that the officer was not justified in kicking the man’s head. The officer claimed he did this in self defence, which is a legal defence against assault under s48 of the Crimes Act. But the IPCA disagreed, saying the obvious response would have been to step away from the man.

Having viewed CCTV footage of the arrest, and interviewed the officers, the IPCA said that they “doubt that [Officer A] is telling the truth… we consider Officer A acted out of anger and in retaliation for being kicked himself.”

They conclude:

As we have found that Officer A was not acting for the purpose of self-defence, the kick cannot
be legally justified.

IPCA – Head kick to man during Christchurch arrest unjustified

The IPCA also went on to consider whether or not the kick would have been justified if Officer A was telling the truth, and they still determined that he would not have been legally justified in kicking the man as he did.

NZ Police’s response is typical for this kind of finding. They claim to “accept” the IPCA’s ruling, but provide no evidence that the officer has faced any consequences for what appears to have been an assault.

In fact, NZ Police charged the man with assault, because he had kicked their officers in the head. But Police chose not to charge their own officer with kicking him back in the head, even though that kick did considerably more harm. Police have only confirmed that Officer A is still a member of New Zealand Police.

This decision by NZ Police, to not charge a member of their own with assault even though they charged the member of the public with assault, is a very clear example of the double standard used by NZ Police when it comes to holding people accountable for violence.

NZ Police using their power of prosecutorial discretion to protect their own from the consequences of abusing their power is, to put it simply, corruption. It happens time and time again.

We need to reform the IPCA to allow them the power to prosecute police officers, as they have told parliament is necessary.

Currently, where the IPCA conducts an investigation and decides that prosecution is warranted, it must refer those matters to the Police. The Police then have sole authority over whether to prosecute or take disciplinary action. However, the IPCA said that the Police may, at times, lack objectivity and may not always strike the correct balance between dealing with conduct issues and being a good employer.

The IPCA noted that similar bodies in other jurisdictions can pursue prosecutions themselves. It said it could be given the same powers. Alternatively, it suggested that it could refer prosecution decisions to a different authority, such as the Solicitor-General, rather than to the Police.

IPCA | Response to Petition of Conrad Petersen

We need to talk about police dogs

We need to talk about police dogs

It’s time we had a national conversation about if the way police dogs are currently used does more harm than it’s worth.

Earlier today, I published a feature on the use of police dogs in New Zealand, based on Tactical Options Reporting (TOR) data detailing police use of force which was released under the Official Information Act.

A shorter version has also been published on The Spinoff.

I hope you’ll take the time to read my full article on this. I think it’s a very important topic that isn’t talked about enough in New Zealand, and we should very seriously consider whether or not current practices are worth the harm they cause. But I’d also like to talk a little about the process of writing it.

Getting this data has been difficult. Each year, NZ Police publishes a summary of the use of force data for this year – its Tactical Options Research Reports – but they don’t contain everything. When the first set of raw data was released in March 2017, covering July-December 2016, I took it apart and discovered things I hadn’t known by reading the reports.

Using that data, and later including data covering later periods, I experimented with my first attempt at interactive data visualisation with a focus on how NZ Police’s application of force has a disproportionate impact on Māori.

That interactive ended up accompanying an NZ Herald article about how NZ Police use tactical options, including an incident during which an attack dog was set on an unarmed 12 year old girl. This incident only came to light because NZ Police released the raw data.

Despite it being 2021 now, my recent feature relies on TOR data covering 2018. After releasing the third set of TOR data, NZ Police began to refuse my requests for more data unless I would pay hundreds of dollars first. It took several requests over two years, and a complaint to the Ombudsman that took 9 months to resolve, before NZ Police finally released TOR data covering 2018.

I think this is data NZ Police should release proactively each year, but I’ve yet to see how they will react when I inevitably request TOR data covering 2019.

When they released the 2018 data, NZ Police also asked that:

To ensure data accuracy and integrity, NZ Police recommends that members of the public access use of force data directly via the OIA process and/or through the NZ Police Annual Tactical Options Report series

Unfortunately, I haven’t found the OIA process to be very quick. Practically every OIA request I’ve sent to NZ Police has taken over a month to get a response, and often that delay has been unlawful.

There are some cases, when you know exactly what questions you want to ask, when asking their OIA team can be a good course of action. Though if you have a good understanding of the data, having access to it can often help you answer questions yourself in a fraction of the time, without taking up anyone else’s resources.

For example, in November 2019 when the Mental Health Foundation was speaking out about its opposition to Police’s “Armed Response Teams” trial, it cited figures from Police’s 2016 TOR report about the disproportionate use of tasers against mentally ill people:

(Despite my expectation at the time, I didn’t have the 2018 data released to me for over a year after this tweet)

Though Police did report this statistic in their 2016 report, they chose not to include it in their 2017 report.

Though, when TASER was deployed, it was more likely to be discharged at subjects with perceived mental distress, irrespective of whether the subjects were armed or not, with a show to discharge ratio of 4:1 (compared to 6:1 for subjects with no perceived distress).

NZ Police Annual Tactical Options Research Report #5 (PDF Link)

Because I had access to the TOR data covering 2017, I was able to quickly determine what the relevant statistic was for 2017:

In 2017, police discharged tasers in 14.4% of incidents where they used them against a person who did not have a mental illness. But they discharged tasers in 25.4% of cases where the person did have a mental illness.

But this is a comparatively minor positive from having access to the raw data. The real benefit comes from the ability to do exploratory analysis.

Simply put, you don’t know what you don’t know. The answer to one question can prompt five more, and only one of those answers might be of interest. Going through the OIA process for this, with delays of a month or more for each answer, would be a painfully slow process.

Having had access to the full 2018 data, however, allowed me to do an exploratory analysis. I had intended for some time to write about the use of police dogs, since seeing the alarmingly high injury rate of police dogs when compared with other tactical options. This injury rate has been consistently reported in Police’s summary reports, and some related statistics can be calculated from the figures presented in them. But more complex and specific figures are absent. The data set is simply too large to present all of it in a summary report.

Even the cut down data that was released to me under the OIA, after Police recoded and withheld many columns in consultation with the Ombudsman to sufficiently anonymise the data, it was still 4,324 rows and 422 columns.

Alongside my police dogs feature, I published a “codebook” containing all the code I used to process the data, and to produce each of the figures and charts used in the article. But I wasn’t able to also document the whole process of my exploratory analysis here, including all the questions and answers that didn’t make it into the final article. Perhaps the closest I came was in printing out the summary of each column to see what it contained.

Most of the interesting insights in this data comes from interactions between columns. One of the two core figures in my article was one that I hadn’t expected to find, and only discovered through exploratory analysis while looking at the “PCA” columns describing how police officers categorised subjects’ behaviour.

In 76% of incidents when police officers set attack dogs on people in 2018, those people were below the “assaultive” threshold. That is, they were not expressing any intent to cause harm, either verbally or through their body language or actions.

Almost every time that happened — 73% of all attack dogs uses in 2018 — NZ Police recorded those people as being “active resistant”. They were pushing away, pulling away, or running away.

When I had begun writing my article, I hadn’t yet realised that most of the moderate and serious injuries inflicted by police were caused by police dogs, but this is something I could have determined from the information in Police’s annual TOR reports.

Once I saw this, I expected it to be the central figure in my article, but finding that the vast majority of the time police dogs were directed to bite people they were just trying to get away it was clear that this added a very important context to their use, and to the harm they do. If I didn’t have access to the data, I doubt I’d ever have learned that this was the case.

Knowing the right question to ask is often the hardest part of investigating something like this. Without being able to do this sort of exploratory analysis, finding the right question can be a very difficult task.

I really hope NZ Police will continue to release their use of force data year on year. It’s too important a topic to not be subjected to independent scrutiny.

Some rules need to change

Some rules need to change

Content note: This article discusses transphobia, and includes examples of it.

I’ve always been big on rules. When I was a kid, I had a lot of trouble grasping the idea that there was a difference between “right and wrong” and “following the rules”. My parents used to quip that I’d probably grow up to be a lawyer.

I don’t think the idea that some rules are just wrong really clicked for me until my early twenties. I’m sure the transition was far more gradual than I recall, but I can remember one moment that certainly feels like a turning point in retrospect.

When I was 21, my partner at the time complained to me about a set of traffic lights that turned red far too quickly, and as a result many people would just drive through after they had turned red. A younger me probably would have said something judgemental about it being wrong to run red lights, but instead I said I thought the lights should be changed because they obviously weren’t working.

Though I came to it fairly late, this idea that rules — including the law — aren’t always right has very much solidified in my mind since then. I’ve also learned a lot about how to work within systems of rules, which any long-time readers will surely have seen in my writing on topics such as the Advertising Standards Authority and on the Official Information Act.

One set of rules that I think currently needs to change is the Births, Deaths, Marriages, and Relationships Registration Act (BDMRR Act). One of the things regulated in this law is the process through which someone can change the sex marker on their birth certificate.

Currently, changing the equivalent marker on other official documentation, such as a driver licence or a passport, is a pretty sensible process. It only requires a statutory declaration. Changing the same marker on a birth certificate, however, is a challenging and inaccessible process that requires medical intervention and the family court.

If you see any claims that the Media Council — in its ruling discussed below — found the article was exonerated in this respect, or that they found the article was not discriminatory, I hope you’ll keep in mind the precise wording of the rule that the “not upheld” ruling refers to.

Thankfully, there is a bill currently before parliament that aims to update this law. It went through the standard consultation process a year ago, receiving over 500 submissions.

468 of those submissions were sent in by the Green Party (they can be read here and here), who conducted a campaign they called Documents with Dignity to collect submissions from people who backed their call for the process for correcting the sex marker on a birth certificate.

You can peruse all submissions received on the bill on the Parliament website, including my submission in support of streamlining the process for correcting birth certificates.

In August 2018, after the consultation period was finished, the Governance and Administration Select Committee published their report on the bill. They proposed adding changes in the bill that would allow the sex marker on a birth certificate to be corrected on the basis of a statutory declaration, as well as including the option of “intersex” and “X (unspecified)” for this marker.

These suggestions seemed to have the full support of the committee, which I think is significant in this context. The National Party has historically held more conservative stances regarding the rights of gender and sexual minorities: 92% of National MPs voted against Homosexual Law Reform in 1986, and 54% of National MPs voted against the Marriage (Definition of Marriage) Amendment Bill at its third reading in 2013. However, the reported noted that the National Party members on the select committee “do not wish to stand in the way of reform of self identification of nominated sex on birth certificates”.

Over recent months, an anti-transgender group opposing the proposed changes in the BDMRR Bill, calling itself “Stand Up For Women”, has been complaining that there wasn’t adequate consultation on the bill and encouraging fellow TERFs to contact members of parliament to express their disagreement.

If you’d like to know more about the proposed changes, and what you might be able to do to help improve things for trans people in New Zealand, you can have a look at the Right to Self ID website (for full disclosure, I helped to proofread the template letter on this website) or this page set up by Gender Minorities Aotearoa to provide an overview of what these changes will mean.

If you look through the list of submitters on the BDMRR Bill, you might notice something odd. A bunch of the submitters’ names are prefixed with “Miss” or “Mrs”.

The reason for this is, sadly, bigotry against transgender people. Particularly against transgender women.

Many of the people who submitted on the bill believe, wrongly of course, that transgender people are all incorrect about their gender. Those who subscribe to this ideology are commonly referred to as TERFs – Trans-Exclusive Radical Feminists. Over the past few years, many of them have come to strongly object to that term, so it’s worth knowing that if you see someone describe themselves as “gender critical”, they’re almost certainly referring to the same trans-exclusionary ideology.

This ideology is what those submitters have alluded to by prefixing their names with “Miss” or “Mrs”. The idea is that, by using this title, they are signifying that they are “real” women. They consider this to contrast (again, wrongly) with transgender women, who they do not believe are women.

You can find other varieties of this tactic online, for example by looking at TERF accounts on Twitter. For example, some will include “XX” in their username, referencing sex chromosomes, in a nod to their ideology. Some others include text or images of their definition of woman (typically they use the wording “Adult human female”) in their bio or avatar, for similar reasons.

These are implicit versions of a much more explicit rhetorical technique often used by TERFs, which is to outright say that a trans person’s gender is not what they say it is. They will often do this by refusing to use appropriate pronouns to refer to someone, for example referring to a trans woman as “he” and “him”. This tactic is known as misgendering.

I wish I could tell you that this sort of gross and disrespectful bigotry was limited to the basements of the internet, but I can’t. Last year, the New Zealand Herald published an article on the BDMRR Bill by one of their opinion writers, Rachel Stewart, and it included a lot of misgendering.

(I don’t want to raise the platform of the bigoted statements made in her article, so I’m not going to the link to it. If you really want to find it, you can go searching.)

Myself and another complainant, whose name I have also redacted below in an effort to protect them from harassment, independently lodged complaints about the article. These went first to the editor of the NZ Herald and then to the Media Council, in November 2018.

Today, the Media Council has published their decisions on these complaints on their website. My complaint was not upheld, whereas the other complainant’s was upheld in part.

Unfortunately, the part of their complaint that was upheld is nothing to do with the bigotry expressed in the article. Rather, it is about this paragraph, which was misleadingly put forth as a statement of fact:

Sure enough, American transgender lobby groups are being funded by the likes of billionaires Warren Buffett and George Soros. Why? Because investors want to help normalise the altering of human biology, and Big Pharma stands to make a fortune. It’s already started.

Rachel Stewart

Because that complaint was upheld, the Herald has now had to publish a note at the top of the article regarding the ruling. They have also published a note about the ruling on page A14 of today’s paper.

My complaint focussed on a different issue. I’ve included my complaint and all responses at the bottom of this article, so scroll down if you’d like to read them. Please note that I have redacted a person’s name from my article, including where I quote Stewart using it, so that repeating her statements here won’t add to the online abuse already aimed at this person.

As far as I’m aware, the Media Council (formerly known as the Press Council) is really the only system of oversight that can hold mainstream media to account in New Zealand. Like the Advertising Standards Authority, it’s an industry body of voluntary regulation. The NZ Herald is one of the Media Council’s paying members, and has agreed to abide by its rulings.

However, the grounds on which the Media Council will hear a complaint — its Principles — are quite limited. They are mostly what you would expect, setting in place requirements around things such as accuracy, clearly distinguishing between comment and fact, and declaring conflicts of interest.

The closest they have to a Principle that deals with this kind of bigotry is Principle 7, which regards Discrimination and Diversity. However, this rule only restricts some very specific behaviour:

Issues of gender, religion, minority groups, sexual orientation, age, race, colour or physical or mental disability are legitimate subjects for discussion where they are relevant and in the public interest, and publications may report and express opinions in these areas. Publications should not, however, place gratuitous emphasis on any such category in their reporting.

Media Council

The Media Council’s principles give no grounds under which I could argue Stewart’s column should be censured because it is harmful, or bigoted. I could only argue that it places “gratuitous emphasis” on transgender people, but this is not a commonly used or clearly defined phrase.

Honestly, because they don’t really have a rule for it, I did not think the Media Council was very likely to uphold my complaint. I already knew going into this that they rarely seem to uphold any complaints. I’ve written in the past, for example, about a complaint of mine that they did not uphold, which I still think was a bad decision on their part.

Thankfully, I don’t think my complaint needed to be upheld to send a message to the editorial team at the Herald that this is not acceptable. That’s why I included several references to NZME’s published commitments to inclusion and diversity in my complaint, even though they would not be directly relevant to the Media Council.

I hope my message has been heard.

This short saga has also made me think that, like the BDMRR Act, the Media Council’s rules may need to change. Though they do have a rule in place that appears as though it is intended to protect vulnerable groups from harm, I think the Media Council’s decision that Rachel Stewart’s transphobic article did not breach this rule goes to show that it is not fit for purpose.

This paragraph, quoted from my complaint, gives some context to the concerning precedent that may have been set by the Media Council’s decision here:

I hope that the NZ Herald would not consider, under any circumstances, publishing a similar opinion piece which treated gay, lesbian, bisexual, intersex, or asexual people with the same disdain as Stewart has shown here for transgender people.

Mark Hanna

If the Media Council will not be able to protect minority groups from bigotry in the media, then it is up to editors to refuse to publish that bigotry. I think the NZ Herald editor who wrote the paper’s response to my complaint got it exactly right here in his initial response to my complaint:

This does not mean columnists are entitled to publish carte blanche – discretion lies with the editor.

David Rowe, NZ Herald

Complaint documents

My initial formal complaint to the New Zealand Herald:

Tēnā koe,

I am writing to you to lodge a formal complaint regarding Rachel Stewart’s column published in the NZ Herald and on the nzherald.co.nz website today, headlined “Rachel Stewart: TERF a derogatory term to shut down debate” (published online at [URL redacted]).

Put bluntly, the article is horrendously transphobic. It is harmful, and I think the decision to publish it was incredibly irresponsible.

Stewart’s transphobic views have been widely known for some time now, in no small part due to her expressing them openly on social media. Just two weeks ago, for example, in response to positive coverage on Stuff of a transgender person who is not a woman, Stewart tweeted a link to the article along with this message:

“Have read this, and I need a cold compress & a lie down in a darkened room. I’m sorry, but I cannot partake in the delusion that this pregnant woman is a man. Not because I’m transphobic (I’m not), but because I recognise when people need psychiatric help.”

I’m not sure if you’re familiar with the concept of misgendering: referring to a transgender person as though they were of a different gender, commonly through the use of inappropriate pronouns like using “he” when referring to a woman. It’s a common tactic among transphobic people meaning to deny transgender people’s genders. For many transgender people it is used against, it can be very distressing.

In her article today, Stewart repeatedly uses this tactic, both against imagined transgender women and against [name redacted], with clear intention to falsely imply that they are men. Examples include:

“the current craze of people – overwhelmingly men – who say they were born into the wrong body”

“Under the proposed new law, a man can call himself a woman without ever medically transitioning (most never do) and insert himself in female-only spaces such as changing rooms, women’s refuges, and prisons.”

“a grown male stranger naked in the changing rooms at her local swimming centre”

“How about [name redacted] competing straight-faced as a female in [sport redacted]?”

I hope that the NZ Herald would not consider, under any circumstances, publishing a similar opinion piece which treated gay, lesbian, bisexual, intersex, or asexual people with the same disdain as Stewart has shown here for transgender people.

I do not see any reason why that same bare minimum level respect should not be extended to transgender people. They certainly deserve it, and I would have hoped that would be clear to everyone working at the Herald.

Just over a year ago, NZME issued a press release proudly proclaiming that they were “the first media company in New Zealand to be awarded the Rainbow Tick, acknowledging its active effort to be a diverse, innovative and inclusive organisation.” (http://www.scoop.co.nz/stories/BU1710/S00268/nzme-awarded-rainbow-tick.htm)

The press release went on to discuss NZME’s Inclusion and Diversity strategy, saying it encouraged employees to “bring your whole self to work”. After this, NZME adopted rainbow branding in celebration of its Rainbow Tick accreditation.

The decision to publish Rachel Stewart’s transphobic article today clearly flies in the face of any commitment NZME might have had to encouraging diversity. I don’t know how any transgender person working at NZME could be comfortable with the decision to publish it, and I hope it hasn’t been too distressing for them.

This sort of transphobia existing in the darkest corners of social media is bad enough, but it’s quite another thing for it to be published in the country’s most widely read newspaper. Intentionally or not, the decision to publish Stewart’s transphobic views there comes with clear tacit endorsement of them. I can only imagine how distressing that decision must be for any transgender people working at the Herald, or who may hope to one day work there.

To my reading, the Media Council’s principle on “Discrimination and Diversity” is not clear where it stands on this point, noting only that publications should not “place any gratuitous emphasis” on issues of gender or minority groups. Whether this opinion piece falls afoul of that principle or not, I hope on reflection you will agree with me that it should never have been published. The fact that it was published as an opinion piece is not sufficient justification for its bigoted content.

The impact reporting has on people is important. The Herald has published some great work with a good, positive impact on people. The work done by Herald journalists on the mistreatment of Ashley Peacock is a great example on this. But for the Herald to take credit for that, it must also take responsibility for the harm done by other reporting.

I hope you will retract Rachel Stewart’s transphobic opinion piece without further delay and publish a prominent apology to those harmed by it, along with a statement in support of transgender people and a commitment to never publish similarly transphobic articles in the future.

Ngā mihi,
Mark Hanna

The response I received from the NZ Herald:

Kia ora Mark,

Thank you for your email.

I apologise for the unintended offence caused to you by Rachel Stewart’s column.

Stewart’s piece is clearly a very personal view of a very difficult issue. It is clearly marked as her opinion.

In the column, Stewart argues that fundamentally, “all human beings – including trans peoples – deserve human rights and respect”.

However, she feels that the adoption of the term “Terf” has been used to shut down debate on the issue of transgender rights – which is important given proposed changes to the Births, Deaths, Marriages and Relationships Registration Act.

She takes issue with the use of the term by a Member of Parliament, Louisa Wall.

Stewart raises concerns about changes to the law, which she feels have been difficult to debate in the present climate.

Stewart acknowledges some of the scenarios she describes in the column are fanciful:

“Look I’m trying to make light of this stuff because no other approach has our government listening.”

Stewart’s discussion of the funding of transgender groups and the role of Big Pharma is posited as a theory to answer a question: “When movements gain full throttle as rapidly as the trans train has, it must be asked, who stands to gain from it?”

While some of the language used by Stewart is confronting, it is important that difficult issues can be freely debated. In this case, it is one which has drawn strong comment from an elected MP and relates to an impending law change.

The issue has emerged out of the debate about the decision to ban uniformed officers from marching in the Pride Parade, which has been covered extensively.

Part of the brief of a columnist is to comment – often provocatively – on social issues and attitudes. They have licence to push the boundaries of what might be considered “polite” or politically correct in everyday conversation.

While causing offence is certainly not the intention, it is almost an inevitable consequence of a cutting-edge columnist.

This does not mean columnists are entitled to publish carte blanche – discretion lies with the editor. As such, I can assure you an editor does not publish such comment lightly.

The easier course is, naturally, to censor anything that might be seen to be controversial: it would certainly make an editor’s life less troublesome. However, the easy course is not at always the best course, and an editor must always be mindful of a duty to protect freedom of speech and provide a plurality of opinion.

We note, too, that the NZ Media Council has ruled that readers do not have the right to not be offended.

“No-one is forcing the complainant to read that column or even that newspaper or website.” The reader has a right to ignore a columnist and hold different views, the council says, but that does not mean they have the right to stop the columnist expressing theirs.

In response to Rachel Stewart’s column, we have welcomed a contrasting view from Louisa Wall, which can be read here:


You are also welcome to make your own views publicly known in a letter to the editor to be considered for publication. I have included the submission guidelines below.

Kind regards,
David Rowe
Senior newsroom editor
NZ Herald

My escalation to the Media Council:

Tēnā koutou,

I am writing to you to escalate a formal complaint regarding Rachel Stewart’s column published in the NZ Herald and on the nzherald.co.nz website on 2018-11-28, headlined “Rachel Stewart: TERF a derogatory term to shut down debate” (published online at [URL redacted]).

On the day it was published, I sent a formal complaint to formalcomplaints@nzherald.co.nz. The next day, I received a response from the editor. I have included both of these messages at the bottom of this email.

I was disappointed to find that the response I received from the editor did not directly address any of the issues I had raised in my complaint. Since having received this response, I have become aware that an identical response was also sent to others who lodged complaints about the same article. I have heard from other complainants that their complaints dealt with substantially different aspects of the article, but that these issues they raised were also not dealt with by the identical response they received from the editor.

As well as the issues raised in my original complaint, I would like to address parts of the response I received from the editor.

The editor highlighted the disclaimer included at the end of Rachel Stewart’s article that “all human beings – including trans people – deserve human rights and respect”.

I have a background in anti-quackery activism. Over the past few years, I’ve lodged dozens of complaints with authorities such as Medsafe and the Advertising Standards Authority regarding misleading health claims in New Zealand advertising, as well as writing about the various forms of regulation around this issue in New Zealand and where they fall short. One feature that comes up again and again in this context is the false disclaimer. In the context of misleading health claims, it typically takes a form like this:

“Our product can cure cancer.

We don’t make any claims that our product can treat or cure any disease.”

You might be familiar with false disclaimers in other contexts, such as in the case of sentences starting with “I’m not racist, but”.

I believe the disclaimer at the end of Rachel Stewart’s article is a false disclaimer of this nature.

Stating that she believes trans people deserve human rights and respect does not somehow negate the lack of respect she shows in the intentional misgendering in her article, which I detail in my complaint.

Nor does this false disclaimer negate her campaigning against the rights of trans people, such as her signing of a letter written by a group dedicated to challenging and undermining the rights of transgender people in New Zealand, which seeks to write biological essentialism – the philosophy underlying the incorrect view that trans women are really men – into law.

The response I received from the editor also has a focus on offence, including what is commonly known as a “not-pology” of the form “sorry you were offended”, which implies all responsibility falls to the person receiving the apology.

At no point in my complaint did I raise offence as an issue. Rather, I explained that publishing bigotry on this level does harm. As I stated in my original complaint, “for the Herald to take credit for [reporting that has a good, positive impact on people], it must also take responsibility for the harm done by other reporting”.

Regarding the Media Council’s principles, as expressed in my complaint to the Herald, I unfortunately find the wording of the principle regarding Discrimination and Diversity to be confusing and unclear. It notes that publications should not “place gratuitous emphasis on any such category [of gender, religion, minority groups, sexual orientation, age, race, colour or physical or mental disability] in their reporting”. However, I am not sure what is meant by “gratuitous emphasis”, or where the line might fall.

I would hope that you will agree with me that the publication of bare-faced bigotry such as what was seen in Stewart’s article should not be acceptable under the Media Council’s principles. As I expressed in my complaint to the Herald, I do not believe it would be seen as acceptable to publish a similar level of bigotry were it aimed at gay, lesbian, bisexual, intersex, or asexual people. I do not see any reason why that standard should be different for transgender people.

I note that, since my complaint, the Herald has published a response by Louisa Wall, and they have also published a small correction to one part of Stewart’s article that was factually incorrect. I do not believe either of these responses deal with anything that I have raised in my complaint, and I stand by my recommendations for how the Herald should proceed:

“I hope you will retract Rachel Stewart’s transphobic opinion piece without further delay and publish a prominent apology to those harmed by it, along with a statement in support of transgender people and a commitment to never publish similarly transphobic articles in the future.”

Thank you for considering my complaint.

Mark Hanna

The NZ Herald editor’s response to the Media Council:

Dear Mary,

Thank you for the opportunity to respond to these complaints. I will address both complaints in this response, as they touch on similar issues and relate to the same Media Council Principles.

Both Mark Hanna and [name redacted] argue that the column “TERF a derogatory term to shut down debate”, by Rachel Stewart, breaches Principle 7 – Discrimination and Diversity. [name redacted] argues the column also breaches Principle 4 – Comment and Fact – and likely Principle 5, Columns, Blogs, Opinion and Letters.

While I understand the concerns expressed by Mr Hanna and [name redacted], I do not agree that the column is in breach of Media Council principles.

The column needs to be judged as a whole, and in the context of a wider debate.

The article is an opinion piece and is clearly labelled as such. It is a response to comments made by a publicly elected Member of Parliament, Louisa Wall, in which she was recorded saying: “I don’t want any f***ing Terfs at the Pride Parade.”

The column is also written in the context of proposed changes to the Births, Deaths, Marriages and Relationships Registration Act.

Stewart argues that the use of the term “terf” – or trans-exclusionary radical feminist – is being used to shut down debate on the issue.

It emerged out of the discussion surrounding the decision to ban uniformed officers from marching in the Pride Parade, which has been covered extensively.

While there had been some reporting on the Births, Deaths, Marriages and Relationships Registration Bill, it had been limited, with little coverage of dissenting voices.

In Britain, a similar discussion is taking place about reforms to its Gender Recognition Act to allow people to self-identify and has been the subject of far more extensive media coverage.

That why it is important Stewart’s views should be allowed to be heard.

[Name redacted] argues Stewart breaches Principle 4 – Comment and Fact when she writes: “Sure enough, American transgender lobby groups are being funded by the likes of billionaires Warren Buffett and George Soros. Why? Because investors want to help normalise the altering of basic human biology, and Big Pharma stands to make a fortune.”

It is a matter of public record that Buffett and Soros have funded, through charitable foundations, transgender groups in the United States. While it could be argued Stewart is drawing a long bow to the potential gains made by pharmaceutical companies, exploring such a theory is not in itself a breach of Media Council principles and I believe there is sufficient information available online and elsewhere for readers to make up their own minds.

I strongly reject [name redacted]’s claim of anti-semitism in Stewart’s column. Mentioning Soros as being among billionaires to have donated to transgender lobby groups does not prove such a claim. His ethnicity or religious background is not relevant and is not mentioned. The statement certainly does not place “gratuitous emphasis” on a protected group.

[Name redacted] also argues that the following paragraph breaches Principle 4:

“I don’t know about you, but I wouldn’t want to be locked up alone in a cell all night with a hairy, muscly, sex-starved inmate of either gender – but particularly one with his full kit and caboodle intact.”

This is clearly Stewart’s personal view, and not a factual assertion that “trans women prisoners will be rapists”, as [name redacted] says.

I also disagree that the statement breaches Principle 7 – Discrimination and Diversity. The principle holds that: “Issues of gender, religion, minority groups, sexual orientation, age, race, colour or physical or mental disability are legitimate subjects for discussion where they are relevant and in the public interest, and publications may report and express opinions in these areas.”

While the language used by Stewart is confronting, she is expressing personal views that reflect her own fears. Unacceptable as they may seem to many readers, some of her concerns are shared by others. Given that these opinions relate to an impending law change, I believe it is relevant and in the public interest to express them.

I do not agree that the column is in breach of Principle 5 – the article is clearly identified as an opinion piece. I not believe the requirements for a foundation in fact have been breached. We did acknowledge one factual error in the piece – relating to the earliest age at which certain medical treatments are given to children. This was corrected both in print and online and does not undermine Stewart’s fundamental arguments.

In his complaint Mr Hanna, refers to a letter signed by Rachel Stewart and comments made earlier on Twitter. Neither is relevant to the complaint – the column must be judged on the words within it.

Mr Hanna argues that Stewart is guilty of misgendering. The Herald agrees that transgender individuals should be referred to by the gender by which they live, and that is our reporting policy.

However, when Stewart uses the pronouns in the paragraphs quoted she is talking in general terms and about hypothetical scenarios under the new law, not about transgender individuals. The reference to [name redacted] does not use such a pronoun.

Mr Hanna disregards Stewart’s conclusion in her column as a false disclaimer, however I don’t think it can be dismissed outright and must be considered as part of assessing the column: “I believe all human beings – including trans people – deserve human rights and respect. What I don’t believe is why anyone questioning the obvious dangers lurking within the proposed new law, should equate to them not being afforded the same.”

Mr Hanna mentions NZME’s Inclusion and Diversity strategy and its Rainbow Tick accreditation. He argues that publishing Stewart’s views is a tacit endorsement of them.

This is incorrect. The Herald aims to be a broad church of opinion, and publication of an opinion is certainly not an endorsement of that viewpoint.

It is NZME’s policy to be inclusive and diverse in all of our operations, actions, policies and procedures.

However, we do need to be a platform for robust debate, even if that is sometimes uncomfortable or painful.

I agree with Mr Hanna that the impact of reporting is important, and the Herald must take responsibility for any harm done by its reporting.

The reaction to this column has been very strong on both sides. On social media, the debate has been passionate and sometimes vicious. This shows both the difficulty of having such a discussion in mainstream media – but also the importance of doing so.

It is better, I believe, that views such as those expressed here by Stewart can be discussed and debated in the open.

Since publishing the column, the Herald has welcomed a response from Louisa Wall and a piece from ActionStation, providing views from trans people on the issue.



This month, we have run an-depth news feature on the Births, Deaths, Marriages and Relationships Registration Bill, explaining the issue, the political implications and canvassing people on both sides of the debate.


We have also run an editorial, which addresses the need to have an open debate about the Bill, but also makes the Herald’s own position clear:

“The Herald believes that trans people should be recognised and respected according to the gender by which they live. The proposed law change removes potentially discriminatory processes which make it harder for those without the resources to meet the medical criteria and go through a Family Court process.

In principle, we support the bill.”


While, of course, Stewart’s column must be judged on its own merits, it has been the catalyst for discussion and reportage which has ultimately helped our audience better understand the issues involved.

Kind regards,
David Rowe
Senior newsroom editor
NZ Herald

My final response to the Media Council:

In their response, the editor denies that Rachel Stewart used misgendering in her article. I believe it is clear that she was not referring to hypothetical cis men pretending to be trans women. Rather she was referring to hypothetical trans women, and using misgendering as a rhetorical device to imply that they are really men.

This is all particularly clear when the context of Stewart’s transphobic statements elsewhere is taken into account, which is why I believe it should not be entirely ignored as the editor suggests.

Though they note no pronoun was used when Stewart discussed [name redacted], the implication of Stewart’s clear incredulity at [name redacted] “competing straight-faced as a female” is that Stewart believes and means to imply that [name redacted] is not a woman. I hope it is clear how closely this rhetoric is to more explicit misgendering through the use of inaccurate pronouns.

The editor admits in their response that misgendering transgender people is counter to the Herald’s reporting policy. I would hope this extends to misgendering a hypothetical transgender person in order to discredit trans women in general, as well as the clearer case of misgendering a specific person.

I understand that part of the role of an editor is to support their writers, but it seems to me that in this case it has resulted in a defensiveness that has led to the Herald failing to enforce the policy that they quoted.

Official information kept secret too long

Official information kept secret too long

Official information is being kept secret for longer than it should be. For the past few months, I have been gathering and analysing data from 12 government agencies, looking at how they handle requests made under the Official Information Act.

My findings reflect what many have observed more anecdotally: responses to requests for information are often sent at the very last minute, and seem to often be delayed unnecessarily. Though it can be difficult to demonstrate that a response was not sent “as soon as reasonably practicable” — a requirement under the law — in any particular case, looking at a larger data set reveals some of the strategies used to delay the release of official information.

You can read my article here: Official information kept secret too long

Chiropractors struggle to drop testimonials

Chiropractors struggle to drop testimonials

The latest newsletter from the regulator of chiropractors offers an insight into the industry’s culture problems.

In their June newsletter, the chair of the Chiropractic Board has admonished chiropractors for a discussion on how to circumvent consumer protection regulations:

At a recent chiropractic function, a presentation was given on advertising, chiropractors’ responsibilities and the Advertising Standards Authority (ASA). The information was well presented and informative however ensuing discussion revealed that the message is clearly not being heard by all. I urge you to please refer to my email of 30 August 2017 that clearly outlines your responsibilities, and reiterates very important points set out in the Board’s Advertising and Social Media Policy, and references to all other responsibilities. I was particularly disappointed in discussion among practitioners on how to best circumvent the prohibition on posting testimonials on Facebook – some very creative ideas were invented.

The Chiropractic Board published their current Advertising Policy in November 2015. It notes, correctly, that the use of health testimonials in advertising is prohibited in New Zealand by Section 58(1)(c)(iii) of the Medicines Act 1981:

A chiropractor shall not advertise any material which relates to the chiropractor’s qualifications, practices, treatment or the premises where they practice chiropractic if the material:

f) uses testimonials whether from patients or any other person (see section on Medicines Act);

This section [58 of the Medicines Act] provides further at Section 58(1)(c) that it is an offence to imply, claim, indicate or suggest that a medicine, treatment or device is a panacea or infallible for any condition or is recommended by an appropriately qualified person or had beneficially affected the health of a particular person or class of persons, whether real or fictitious.

This wording clearly prevents a health practitioner publishing testimonials.

Unfortunately, this law is widely ignored in New Zealand, particularly by promoters of dodgy health products. In my experience even when breaches are brought to the attention of the agency responsible for enforcing it – Medsafe, in this instance – nothing is likely to happen.

In 2015, my colleague at the Society for Science Based Healthcare Mark Honeychurch and I looked at how often New Zealand chiropractors were publishing health testimonials and various misleading health claims in online advertising. This was prior to the publication of the Chiropractic Board’s current advertising policy, but over 20 years after the law prohibiting the use of health testimonials in advertisements was passed. We found that just over a third of the 137 websites we looked at used health testimonials.

Thankfully, this does seem to have decreased following the introduction of the Advertising Policy, but the recent newsletter seems to imply that chiropractors are not happy about being unable to use testimonials to promote their services.

When looking at how often chiropractors use misleading claims and health testimonials in 2015, we hadn’t looked at advertising on social media. While writing this post, I have searched for “NZ chiropractic” on Facebook and clicked on the top three pages that showed up in the results – Bays Chiropractic NZ, Chiropractic Touch, and Revolution Chiropractic NZ – to have a quick look (I didn’t look through any comments or watch any videos) and see if any of them had been publishing testimonials there.

I didn’t see testimonials on the Bays Chiropractic NZ page, but I couldn’t help but notice that they shared an image in February featuring many misleading claims about chiropractic manipulation, including that it can reduce allergies, asthma, and ADHD. As the Chiropractic Board of Australia has clarified in their own Statement on Advertising in 2016, these claims are not supported by evidence:

Claims suggesting that manual therapy for spinal problems can assist with general wellness and/or benefit a variety of paediatric syndromes and organic conditions are not supported by satisfactory evidence. This includes claims relating to developmental and behavioural disorders, ADHD, autistic spectrum disorders, asthma, infantile colic, bedwetting, ear infections and digestive problems.

In August 2017, Chiropractic Touch posted a testimonial claiming that chiropractic manipulations had cured someone’s asthma. They used one of the “creative ideas” commonly used by chiropractors to try to circumvent the prohibition on publishing health testimonials: telling the testimonial in the context of it inspiring a chiropractor to pursue their career rather than framing it as a patient’s experience.

I didn’t see any testimonials on Revolution Chiropractic NZ’s page, but they do seem to publish a lot of posts about adrenal fatigue. Adrenal fatigue is a fake diagnosis that I’ve seen most often used by naturopaths to sell unnecessary supplements. Revolution Chiropractic NZ also shared some of the same misleading claims as Bays Chiropractic NZ, including particularly concerning misleading claims about being able to treat children and infants for conditions such as colic and ear infections.

Whatever improvements there may have been over the past few years, it seems the chiropractic industry in New Zealand is still struggling with its culture of ignoring or sidestepping patient protection regulations.

NZ Police pursuits keep killing people

NZ Police pursuits keep killing people

Despite a repeated cycle of calls for change, people keep dying in police pursuits in New Zealand. Just today, a teenager and a child died as the result of a police pursuit in Palmerston North.

News stories like these keep appearing. In February this year I asked NZ Police to release a number of statistics regarding police pursuits so I could examine what, if anything, has changed. I began to write about it in March but didn’t end up publishing it, having intended to put it on a new “features” subdomain I’ve been working on where I’ll be able to do some more complicated stuff than WordPress will allow.

One of the statistics I included was the number of people who have died as a result of police pursuits since the most recent review began. I’ve gotten very sick of having to update that number. So out of that frustration, I’ve published my article. You can read it here: NZ Police pursuits keep killing people