Sir Trevor Mallard was explicitly told by police leadership that soaking the anti-mandate protesters at Parliament in water and playing “bad music” would make the situation worse - and yet he persisted.
That determination now has Mallard - former Speaker of the House and now New Zealand’s ambassador to Ireland - facing a High Court case brought by a girl who was 11 at the time of the protest.
The child, who is from Northland but will seek name suppression, claims Mallard blasting “Let It Go” and “Baby Shark” while soaking her with water weaponised “songs that she liked”, causing “mental anguish, humiliation, degradation and dehumanisation”.
The case seeks a declaration that the child’s rights were breached, as well as damages of $40,000 for three separate breaches.
It’s the latest in a number of Covid-19-related cases filed by lawyer Tudor Clee that seek rulings on alleged breaches of rights during the pandemic, and is set for its first outing at the High Court in Wellington on July 7.
Through the Official Information Act, Clee has obtained text messages and police briefing notes that show senior officers - including then commissioner Andrew Coster and current commissioner Richard Chambers - considered Mallard’s plan to be a bad idea and tried to stop him.
Their positions, revealed in messages and notes, went much further than the police’s public position that it did “not endorse” the approach.
Instead, they show police unsuccessfully pushing back against Mallard’s plan to move the protesters off Parliament’s lawn by turning on the sprinkler system on February 11, 2022.
The Speaker of the House - the role Mallard held from 2017 to 2022 - is third in New Zealand’s political power structure after the Governor General and Prime Minister and has control over the administration of the Parliamentary precinct.
The current police commissioner Richard Chambers - then assistant commissioner - recorded in the police “operation log” that Mallard “has become increasingly frustrated and decided to make life as uncomfortable for the protestors as possible!”
Chambers’ record shows he told Mallard by phone the move “will be perceived as a Police tactic” but “Mr Speaker says we can address in media that it is his decision”.
Chambers wrote: “Also point out to Trevor they are likely to damage sprinkler system. Trevor says he is not concerned about that.”
Figures provided to the Herald by Parliamentary Services show repairs to the sprinklers cost $2900 and lawn repairs cost a further $114,625.
At that stage, the number of people camped out on Parliament’s lawn was growing towards the police estimated peak of 3000 people on February 14.
After the use of Parliament’s lawn sprinklers failed to budge people, Chambers’ notes show Mallard called him again on February 12.
His record of the 2.50pm call showed: “[Mallard] wants to put up loud speakers to warn, with vaccine advertisement and music. Discouraged Trevor for tactical reasons. Not supported by Police. He is ok to wait until we have better idea and to [sic] timings for next steps.”
Mallard’s promise to wait lasted only a few hours, with Chambers recording a phone call from Superintendent Scott Fraser - the commander on the ground at Parliament - saying Mallard would be turning on speakers to play vaccine advertisements and “bad music” at 6pm.
Chambers’ notes show he called Mallard at 5.58pm “with [a] request not to turn on [the] sound system”.
“Express concern it will impact on our negotiation tactic. I reinforce Police position and ask he doesn’t turn on. He responds to say he just wants to make life as unpleasant for protestors as possible. Says he ‘notes’ the Police position and request.”
“...he just wants to make life as unpleasant for protestors as possible“.
The call didn’t dissuade Mallard and the attempt to do so escalated to Coster, the police commissioner at the time.
In a notebook entry, Coster recorded he had called Mallard at 7.04pm and 7.09pm on February 12 2022, the day music started to be played, and a day after Mallard activated the lawn sprinklers.
Coster’s notebook entry said: “Acknowledged we can’t tell him what to do but asked him not to play messages and music over Parliament PA ‐ risk of causing escalation with crowd and undermining [police] ability.”
After speaking to Mallard, Coster sent a text to then-Minister of Police Poto Williams:
“Hi Minister. The Speaker has decided to play music and (Covid health) messages, although we have asked him not to. Hopefully he may reflect further of (sic) the next little while…” Williams, in response, said: “I wonder about the power of the Macarena to effect change. Mr Speaker was always one to run his own race.” Along with the Macarena, Mallard also played songs by Barry Manilow and a recorder version of the Celine Dion hit, My Heart Will go On.
Coster also sent a text to then-deputy commissioner Glenn Dunbier, saying of Mallard: “I’ve spoken to him and asked him to stop. I think he genuinely thinks it’s a good idea.”
Clee told the Herald the objective of the High Court case - as expressed to him by the child - was that no one would be doused in water and “blasted with music” again.
The case came to him after he successfully represented the child’s relative over injuries caused by police during the protest, he said.
He said the case required the girl - now a teenager - to have a “litigation guardian” - usually a parent - appointed by the court to ensure her rights were properly represented.
In this case, he said the guardian would be the girl’s mother, who would illustrate to the court she had no undue influence or interest in relation to the legal action.
“I said, ‘I need her own words - can you get her to say it in her own words’.” The response, Clee said, was clear. “She doesn’t believe someone should go to a protest and be treated that way and she doesn’t want it to happen to anyone else.”
“She doesn’t believe someone should go to a protest and be treated that way.”
Clee said he was making contact with those who had an expertise in the use of loud music as a means of torture and using sprinklers as a deterrent. He said there was precedent for both under European law from which New Zealand took the lead on human rights cases.
He said there was also evidence Mallard was aware there was excrement on the grounds before he turned on the sprinklers, creating or contributing to a potential health hazard.
In an interview with the Herald’s Audrey Young just days later, Mallard was quoted saying: ”Diluting a bit of the s*** and urine was not a major issue for me."
Clee said Mallard acted against police expertise with no apparent evidence supporting his plan. “It just popped into his head or somebody said it and he thought it was a good idea.”
Clee said it was unlikely Mallard could argue the decision to use music and sprinklers was reasonable or well-judged.
Williams told the Herald police were clear in their advice but ministers - even the Prime Minister - had no power to direct the Speaker of the House, who had responsibility for Parliament’s precinct.
“Trevor, at the end of the day, made the decision to play the music and get the sprinklers going and initially was not easily dissuaded from that...Everything was a bit heightened and I think Trevor was trying to do the best he could.”
Mallard was asked to comment but declined to do so. Both Chambers and Coster have also declined to comment.
A request for comment from the current Speaker of the House, Gerry Brownlee, led to a statement from Parliamentary Service chief executive Rafael Gonzalez-Montero, who confirmed notice of the case being filed with the court had been accepted on behalf of the Speaker of the House.
He said Parliamentary Services could only receive (and respond to) legal actions for actions Mallard had carried out as Speaker of the House and not for any case against him personally. He said the cost would come out of the Parliamentary Services budget.
University of Otago law professor Andrew Geddis said Mallard in the role of Speaker of the House had the “basic right of a property owner to exercise legal force over people on their land”.
However, he said the exercise of “reasonable force” had to be balanced against the right to protest.
He said a key focus would likely be whether the force used - the music and sprinklers - was “reasonable” with a likely focus on the advice Mallard received at the time.
Geddis said the case taken would be against the Speaker of the House - not Mallard personally - because it was the office he inhabited at the time which had the responsibility and made the decisions.
He said the current Speaker - Brownlee - would make the decisions on how this case would be handled after taking legal advice.
Geddis said the lawsuit was an example of how our system of running a country self-corrected.
“Cases like this are a part of the way in which our system reflects on how power was exercised during Covid, and that whatever the intentions of those involved, that power was used in appropriate ways.”
Geddis said the ongoing Royal Commission of Inquiry was another example of how the system tested the exercise of power.
David Fisher is based in Northland and has worked as a journalist for more than 30 years, winning multiple journalism awards including being twice named Reporter of the Year and being selected as one of a small number of Wolfson Press Fellows to Wolfson College, Cambridge. He joined the Herald in 2004.
The lawyer representing a child suing over the parliament protests joins Ryan Bridge on Herald NOW. Video / Herald NOW