Someone said this on the 22nd of March 2007:

The Labour Government has shown utter contempt for New Zealanders and the democratic process with its plan to railroad the anti-smacking bill through Parliament, says National Party Leader John Key. “The Labour-led Government knows the measure is deeply unpopular, so it plans to act against the wishes of the majority of Kiwis and ram the bill through under urgency. “This is a deeply cynical abuse of power as Labour tries to clear the decks of this controversial issue.

It’s almost unimaginable, in light of his reponse to public denunciation of the law change, that the person who said this is the same person who now leads the government. Let’s not let him forget.

Hat tip to M and M for bringing this news story to my attention.

Remember that controversy over the anti-smacking law? The short story: The law change in New Zealand meant that absolutely any force of any kind used in the discipline of a child (such as a spank, or moving a child by force to his room, or anything else involving force) is a crime and there is no legal defence that can be made against the charge of assault in such cases. Realising that if actually applied, the law would be horribly unjust and crazy to boot, the current Prime Minister John Key (who was not in government when this law was passed) sought to put the mind of Joe public to rest by advising police and social agencies not to get carried away (my paraphrase). I’ve explained already that this is a fundamentally wrong approach to law, and I won’t revisit this here.

Fast forward to a story that appeared in today’s New Zealand Herald:

Judge turns tables on driver’s schoolboy accuser

A schoolbus driver was taken to court for grabbing the arm of a rowdy boy who would not stop pulling a girl’s hair.

But the judge threw out the charge – and had a policeman take the 12-year-old boy to the police cells as a warning.

Jim McCorkindale, 70, of Gore in Southland, told the Weekend Herald that while dropping off children last July, he saw two boys pulling the hair of a girl and got out of his driver’s seat to try to stop it.

“I went over and touched the boy on the arm to attract his attention, and that was the assault.”

When the boy did not respond to being told to stop, “I threatened to hit him in the ribs, and he flinched and let the kid’s hair go to protect his ribs”, Mr McCorkindale said.

“But I never touched him again.”

The boy had continued misbehaving after Mr McCorkindale returned to his seat.

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Children on the bus called the police and he found officers waiting to talk to him when he finished his run.

When police rejected the option of diversion, Mr McCorkindale received a court summons.

But in the Gore District Court, Judge Kevin Phillips threw out the charge.

Instead, he told the boy he should be “thoroughly ashamed” of himself and had a policeman take him to the cells, the Southland Times reported.

Mr McCorkindale said he found it disgusting that he was charged in the first place.

“You can’t do a bloody thing,” he said. “It’s better to hop out of the bus and leave them to it. See nothing.

“The days of sit down, shut up, do as you are told, are gone. When I was going to school, you did what you were told. Now, you sometimes do as you’re asked – if it suits you.”

That’s right.  He took hold of the arm of a boy who was pulling a little girl’s hair, and for this, the police charged him with assault. These are the police who are being given the power to decide whether or not the law should be applied in cases of parents who use force in the correction of their children.

Feeling safe?

As readers will be aware, the vast majority of those who voted in New Zealand’s recent referendum  on section 59 of the Crimes Act voted for change. They voted for the decriminalisation of light smacking as part of correction. Currently, subsection 2 of this law explicitly states that nothing in the Act permits the use of any force as part of correction. It is, according to our law, a crime to use a smack as part of correction.

The responses – and the comments leading up to the referendum – from some of the small number who wanted the referendum to have a very different outcome has been interesting, to put it gently.  The vocal propaganda site Yesvote, concerned about the prospect of re-de-criminalising smacking, described how awful this would be by saying “Turning the clock back is a retrograde step.” Given that retrograde just means putting things back how they were, this is not the most profound statement I have seen on the subject! In other breaking news, circles are round.

Using other equally strange tactics, the same site reproduced media comment calling the voter turnout “low,” in spite of the fact that it’s one of the most popular referenda the nation has ever seen in its history, and those who voted “no” alone outnumber those who have ever voted for a winning political party in the general election! Ken over at Openparachute actually claims, in spite of the view of those who forumlated the new section 59, that smacking isn’t even illegal!

So much for mind boggling spin and misinformation. Some facts are not fodder for dispute, and they are:

1) Subsection 1 of the new law does allow force only when it is incidental to good care and parenting, however,

2) Subsection 2 is inserted as a clarification to remove doubt, stating that nothing in subsection 2 may be interpreted to permit any force for correction.

Subsection 2 is the important part, insisted on by those formulating this law who wanted to ban smacking. By removing force for the purpose of correction from the scope of the exceptions/defences available to the charge of assault, all force used for correction is rendered a crime with no defence.

Any comments that deny this will be deemed not to have even reached first base, on the grounds that they have missed the fundamental facts and my reply will be to refer you back to read the legislation again.

In the wake of the clear referendum outcome, John key’s latest excuse to ignore the outcome is to repeatedly claim that he will not ignore it, while not acting on it. If you’ve followed the news over the last couple of days, you might think “But wait, didn’t he say that he was going to act on this to protect parents?” Yes he has said that. I commented on it recently when I said that only a law change is morally acceptable here. What I want to introduce here is the possibility of an undermining of the New Zealand Constitution. New Zealand doesn’t have one document called “the constitution,” but we do have a body of constitutional legislation (e.g. the Bill of Rights Acts, the Treaty of Waitangi Act, the Electoral Act, etc), which considered together can fairly be called our constitution. There are a couple of crucial constitutional principles that I have in mind in this post:

1) The Rule of Law

2) The separation of powers

These principles are very closely related, actually. The rule of law can be contrasted with, say, the rule of a king (where a King can rule by his own will), and in New Zealand it draws on another important constitutional principle, the Supremacy of Parliament (the principle that only Parliament, when acting as a legislative body gets to make laws). It means that the word of a ruler – or even the word of all politicians for that matter – is not law. It is not a ruling in court, it is not even (in any formal sense) a legal opinion (not that a legal opinion is binding, but you get the idea). We are not obliged by any of these things. We – and our leaders – are obliged by the law. This has all kinds of implications. The Prime Minister could not say, for example, “when the Prime Minister lies in court, it’s not illegal.” It’s not for him to decide, he is subject to the same laws as the rest of us, and all are equal before the law.

The principle of the separation of powers is similar in that it makes a fundamental distinction between the right to rule, and the right to enforce law and make decisions that determine who has and has not broken the law. A Member of Parliament – even the Prime Minister – cannot intervene in a court case if he doesn’t like the way a judge rules, and change the outcome. If he/she thinks that a person should not be prosecuted for committing a crime because they are definitely guilty, but the crime is trivial, the very most that he may do is seek a law change in parliament. He may say whatever he likes about what should and should not be a crime, but his opinion belongs only to himself and has no binding power beyond that.

I think – undogmatically at this stage – that John Key is running the risk of undermining these principles. Not in any overt revolutionary, hang-the-judges-and-let-me-drive-this-thing way, no. But here’s what has happened – there are two things.

FIRSTLY, John Key, in response to the clear result of this referendum, has told the public that he is acting on what they have said. Now, what they have said is that smacking as part of correction should not ipso facto be a crime. But what Mr Key has proposed is that Police and Welfare staff should be advised that “they should not investigate or prosecute parents who had lightly smacked their children.”

This clearly doesn’t change the law, so the smack in question is still a crime, but the Prime Minister is advising Police not to prosecute that crime.

SECONDLY, a Bill was introduced into Parliament today by the ACT party to specifically address the very thing that the referendum showed: That parents do not want light force used for correction to be a crime anymore (read about it HERE):

A bid by an Act Party MP to change the law that bans smacking is doomed because National will vote against the bill in Parliament.

John Boscawen drafted the member’s bill, which would make it legal for parents to lightly smack their children.

It has been in the ballot since March and was drawn today.

…..

Having the bill on Parliament’s agenda offered Mr Key an opportunity to change his mind about leaving the law as it is after the referendum result which showed nearly 87.4 per cent of voters do not want a light smack to be a criminal offence.

He did not take it and is standing by the decision he announced on Monday, which was to strengthen assurances that the police and welfare authorities will not prosecute parents who lightly smack their children.

To make things worse, some members of the New Zealand public are simply muddled about what it means for something to be “criminalised,” and are telling people that this move actually means that smacking isn’t a crime. At the link I posted earlier, Ken claims:

However, the Prime Minister has, I believe rightly,  recognised the result indicates there are still parents out there who are afraid that the current law could criminalise their parenting behavior. He has proposed measures, not including law changes, to address that concern.

Perhaps we need a government financed campaign to explain to New Zealand parents just what our current law says. Alongside that information of the actual operation of the law would also help.

The police reviews have been quite clear in showing that parents are not being criminalised.

The fudge is obvious. Law does not criminalise action when the action occurs. The law is written down ahead of time, criminalising behaviour that people may or may not engage in at some point in the future. What the police do is not to “criminalise” behaviour – this is to ignore the separation of powers. The Police prosecute acts that are already criminal. Indeed, the police could not prosecute behaviour unless Parliament had already criminalised it. Something is criminalised by lawmakers when they write laws that make actions crimes. Criminalising behaviour is not a role of the judiciary or of law enforcement.

The trouble here is, Mr Key is assuring people that no law change is necessary because he is instructing police and social workers to react a certain way when a certain subset of crime is committed. Police, if they obey Mr Key, are going to act as though the law had been changed. Now of course, these instructions are not binding. The only way they could be binding is if we didn’t have the rule of law. In effect, the law doesn’t need changing because his instructions are currently filling the role of an ammended law. And as for the separation of powers, I grant that Mr Key isn’t giving instructions to judges. That would be far too blatant, and judges would simply refuse to comply (rightly so!). But he’s uncomfortably close.

[EDIT] I’ve just checked my inbox, where I found an email sent today by Family First. It points out something fascinating about John Key’s stance on ammendments to section 59 of the Crimes Act and whether or not police should overlook minor criminal offences (the source for the John Key quote is here, in an article that (now ironically) says that Labour showed “contempt” for New Zealanders):

John Boscawen’s amendment was virtually identical to the Chester Borrows amendment – an amendment which the Prime Minister said only two years ago… “the way you send a message is to make the law clear and precise and then to police it strongly and vigilantly. My colleague, Whanganui MP Chester Borrows, has put forward an amendment to Sue Bradford’s Bill that would do this. In my view, this is the correct response, and the one Parliament should adopt.”

[bold text highlighted by me]

Glenn Peoples

NZ Prime Minister John Key is saying that he takes the referendum outcome seriously, and that he wants to reassure parents that they will not be investigated or prosecuted just for smacking a child. See the story here.

Police and Child Youth and Family officials will be warned to not prosecute parents for lightly smacking their children.

Prime Minister John Key told the Sunday Star-Times in Sydney yesterday he was planning to introduce “increased safeguards” to prevent parents who gave their children “minor” or “inconsequential” smacks from being either investigated or prosecuted.

The PM claims that he actually supports the view of those who voted no.

Mr Key also told TVNZ’s Q&A programme this morning that he agreed with the result. “I agree and support their view there, I think it would be totally inappropriate for a New Zealand parent to be prosecuted for lightly smacking a child.

Here’s the problem: Their (our) view is that a smack as part of good aprental correction should not be a criminal offence. Unless the law is changed, it will continue to be a criminal offence. To say that it will remain a criminal offence, but police will be advised not to prosecute these criminals, is not to share our view at all.

Criminals should be prosecuted. If a reasonable smack (not a punch, a whipping, a “good hiding,” etc) as part of normal correction should never be prosecuted, then it should not be a crime in law, which it currently is.

Stop being half hearted, Mr Key. If you share our view, as you claim to, that a smack should not be a crime, then seek a law change so that a smack is not a crime. It’s not complicated. We’re waiting.

Glenn Peoples

Sue Bradford, the MP who first proposed the anti-smacking law in New Zealand, is not surprised that the majority of those who voted in the recent referendum do not share her views. However, she maintains, some of those who voted “No” were actually people who do support her, but accidentally ticked the wrong box. She “believed some people were so confused by the question they accidentally voted the wrong way.”

Should a smack as part of good parental correction be a criminal offence in New Zealand?

I understand that some people – unaware of the basic legal reasons for the wording of the question – personally felt that the question was somewhat biased, but so confused that they didn’t even know if a “yes” or a “no” constituted agreement with the current law? Does Sue Bradford really think that her supporters are thick?

Glenn Peoples

I spotted this over at Kiwiblog today:

1. 1,420,959 – Voted no to treating correctional smacking as a criminal offence
2. 1,053,398 – 2008 Voted for National when they won the election
3. 935,319 – 2005 Voted for Labour when they won the election
4. 838,219 – 2002 Voted for Labour
5. 800,199 – 1999 Voted for Labour
6. 701,315 – 1996 Voted for National

This certainly puts the lie to the claim that the referendum is irrlevant or that it was ignored because of an alleged bias in its presentation. The reality is, just those who voted no outnumber the supporters of any political party that has won an election in this country. Then add the 200,000 or so who voted in the minority, and you’ve got one heck of a popular and representative referendum!

Let’s now sit, watch, and see what our Prime Minister is made of.

Glenn Peoples

Well, the result of the referendum is in. Nobody ever doubted that it would be a landslide, but as a formality, let’s note that 87.6% of those who wanted their voice heard in this referendum voted no. Parents who smack their children as part of correction should not ipso facto be deemed criminals, as they currently are in law.

We were, as a nation, simply not impressed by the defence that it’s just more expedient to make us all criminals, and then leave it up tot he police to decide which criminals to prosecute, knowing in advance that they will have no pesky defence.

The trouble is, it’s just not clear what, if anything, the government will now do in response to this very clear message.

Have a look at what VOTE NO have to say about this predictable but happy outcome.

Glenn Peoples

As plenty of readers will already know, New Zealanders are currently taking part in a postal referendum on the issue of whether or not a parent smacking a child under any circumstances should be a crime. I have already voted no.

In 2007 Sue Bradford of the Green Party was successful in having section 59 of the crimes act repealed and replaced with a new version. The former version provided exceptions to the law concerning assault, providing a defence. It permitted parents to use “reasonable force” in the process of correcting their children. This would include, putting a child in her room against her will, administering a smack, placing a child on the “naughty stool” when he didn’t want to go, and so on. These are all uses of force, and are acceptable provided they are done within reason (e.g. hurling a child into her room would not be allowed, and nor would punching a child’s lights out or shoving him into the stool).

This defence was necessary because of the unique relationship that parents have with children. Obviously it would be illegal for me to select a random adult and force him into a bedroom and require him to stay there. That would be assault and unlawful detention, as would making him sit on a stool against his will, and smacking him would just be common assault. So there was a natural and obvious difference between the rights and protections given to another adult and those given to a child. This is reflected in other aspects of law too (e.g. children can’t buy alcohol, vote, consent to sex, get married, drive a car etc). Those who say, for example “if you can’t do it to an adult, why should you be allowed to do it to a child?” are just not thinking seriously about the issues at all.

The new section 59 erases this defence completely. In its place here’s what it now says, as law professor Jim Evans pointed out:

Subsection (1) of the new section 59 allows a parent (or person in the place of a parent) to use force that is reasonable in the circumstances for the purpose of (a) preventing or minimising harm to the child or another person, (b) preventing the child from engaging in a criminal offence, (c) preventing the child from engaging in offensive or disruptive behaviour, or (d) performing the normal daily tasks incidental to good care and parenting.

So far so good. “But wait a minute,” you might think. “part (d) would allow a smack, provided it was part of good parenting.” Up to this point, maybe, but then check subsection (2) of the new version. It reads: “Nothing in subsection (1) justifies the use of force for the purpose of correction.” Subsection (3) adds: “Subsection (2) prevails over subsection (1).”
Subsection (2) is where the problem arises, and it is this section that now prompts people to call for a law change. So here is the issue: Force is allowed as part of “good care and parenting,” provided it’s not corrective. Now wait a minute, isn’t correction part of good care and parenting? Confused yet?

In case it wasn’t unclear enough for parents already, subsection 4 makes it even worse, allowing police discretion when this crime of assault against children is committed, enabling them to decide for themselves which criminal acts to prosecute. So a law that is already now written in doublespeak then gives police sole discretion in deciding whether or not to prosecute, in a case where the defence of reasonable force in correcting a child is no longer available.

Because of the wording of subsection 1, which refers to “good care and parenting,” and because of the wording of subsection 2 (which for many, introduces confusion), referring to “correction” as though it was excluded from good care and parenting opponents of the law change had the referendum question worded as follows, following the lead of the legislation:

“Should a smack as part of good parental correction be a criminal offence in New Zealand?”

The question was written precisely because of the terms used in the new law, asking new Zealanders, in effect, whether they agreed with the divide that the law proposed between “good care and parenting” in which reasonable force was allowed, and “correction” in which no force at all was allowed.

I think that the facts as spelled out above are relatively simple and easy to ascertain. However, the supporters of Sue Bradford’s law change, as well as supporters of voting “Yes” in the referendum (the two groups partly overlap) have set out on a campaign of misinformation and deception, along with bungled and careless reading of the law.

John Roughan is among the worst offenders. In reply to the claim that the law is unclear or possibly inconsistent, he writes that subsection (1) clearly allows smacking, so there’s no ban on smacking here at all! He further implies that anyone who is worried about subsection (2) is supporting the right to inflict “a cold-blooded assault” intended to leave a defenceless child  “in pain and fear.” He claims that there’s absolutely no tension in the law because it’s obvious that “correction” in subsection 2 refers to this type of assault, or to things like “ritual thrashings.”

Fortunately, uncritical opponents of the referendum (like those who reproduced Roughan’s material online as gospel) weren’t the only ones reading. Roughan’s legally uninformed perspective was itself given a good thrashing in the same newspaper by Professor Emeritus of law at Auckland University, Dr Jim Evans (see here). He explains just how the new section 59 is in fact unclear and a poor piece of legislation.

Others (e.g. the propaganda site “yesvote”) have claimed that the wording of the referendum question is loaded because it uses the word “good” and repetitive because it uses the word “correction.” This just represents a failure to understand the specific legal reasons why those terms were chosen. They were chosen because subsection (1) allows force as part of good parenting, and yet subsection (2) forbids force in cases of correction. The referendum question then asks parents if correction using force can indeed be part of good parenting. The only ones claiming that the question is loaded or unclear are those who are motivated to do so, namely those who themselves fully understand the question but who want people to vote “Yes.”

There’s a good list of frequently asked questions over at http://voteno.org.nz/faq.htm

But isn’t “Vote no” a propaganda group too? Sure, in the sense that they are trying to influence opinion. They do, however, draw on the legal facts of the matter, along with evidence that the new law is not making any positive difference in the abuse rates of children, and they also illustrate the negative impact of the law on good parents in New Zealand. If the facts are in poor taste, then that website’s up to no good!

So for what it’s worth, if you haven’t voted yet, vote NO.

Glenn Peoples