In 2024, the Court of Appeal in Kyle v R confronted a deceptively simple question: can expert witnesses rely on “grey literature”? The trial judge thought not, and with good reason. Grey literature – reports, briefings, and papers produced outside traditional publishing channels – can be timely and useful. But it lacks the authority, transparency and scrutiny that courts, and the public, depend on.
The category is vast: government reports, dissertations, conference papers, technical memos, even blogs. Its great advantage is speed. Public health officials turn to it because they cannot wait two years for peer review.
But its weaknesses are fatal when credibility is on the line. With no external refereeing, weak bibliographic standards and often anonymous authorship, grey literature is riddled with risks: selective reporting, hidden bias and plain inaccuracy.
The AACODS checklist – Authority, Accuracy, Coverage, Objectivity, Date, Significance – offers a way to sift the credible from the worthless. But the checklist also exposes how much of this material fails to meet even basic standards.
Which brings us to “Maranga Mai!”, the Human Rights Commission’s 2022 report on colonisation and racism. The report, prefaced by then-Commissioner Paul Hunt as the start of national “truth-telling”, is itself a case study of the perils of grey literature. That is not review, it is self-endorsement.
Most contentious is the report’s reliance on the so-called “Doctrine of Discovery”. According to “Maranga Mai!”, 15th-century papal bulls legitimised European conquest and became the legal foundation of this country’s colonisation. From this, the report concludes that systemic racism is woven into our history.
AUT Professor of History Paul Moon has been trying to correct the record. Ideally, he sees the report being withdrawn. He challenges the use of the doctrine, arguing that it is more ideological construct than legal reality.
Since the report’s release, Moon has made three Official Information Act requests for information about its provenance. He has sought details identifying authors and about peer review.
HRC responses were obfuscatory. To a request for transcripts of interviews with two named contributors, the HRC responded that the transcripts existed, but would not be disclosed. The interview information was provided under an obligation of confidence. The refusal was to protect the peoples’ privacy.
The OIA requests reveal that authorship is murky. The text attributes itself to the Tangata Whenua Caucus of the National Anti-Racism Taskforce and the commission’s Indigenous Rights Group, but names no actual authors.
Acknowledgements list prominent Māori academics and activists, but the reader is left guessing who wrote what. When pressed through the OIA, the commission refused to identify authors, citing privacy and staff safety.
Nor was the report independently peer-reviewed. The HRC admits the only review was internal.
This raises questions about why the HRC wasn’t prepared to be transparent. Surely it didn’t have something to hide. There were questions about the report’s lack of academic rigour that should be subjected to scrutiny.
It also demonstrates how OIA requests can be avoided – and not only by the HRC.
It demonstrates why grey literature demands scepticism. The report’s authority is weak, its accuracy contestable, its coverage narrow, its objectivity compromised.
The danger here is twofold. First, the HRC undermines its own credibility. If it can’t distinguish between advocacy and evidence, why should its pronouncements be trusted?
Second, the public discourse on colonisation – a subject that deserves seriousness and rigour – is polluted by a document more akin to polemic than scholarship.
If truth-telling is the goal, it must begin with intellectual honesty. Otherwise, the HRC risks perpetuating not truth, but myth.
