Smackdown over the S59 law
Why the citizens referendum in July is a futile way to spend $10 million
By now, the so called ’smacking’ debate is one of those issues that has been aired so thoroughly that its arrival back on the political agenda is like having an argumentative uncle turn up for Christmas dinner. He’s here again, there’s going to be a fight – and how long will it be before he goes away again ?
Next month, in the middle of a recession, New Zealand is set to spend something close to $10 million on a citizens initiated referendum (CIR) on the subject. The result will not be binding on the government and – judging by our previous track record on CIR that are NOT held at election time – the turnout can be expected to be low. The 1995 firefighters CIR attracted a turnout of only 28%.
This year’s referendum is being held nearly two years after the legislation that amended S59 of the Crimes Act – thus removing the defence of ‘reasonable force’ in cases involving parental violence against children – was passed by Parliament by a majority of 113 votes to 8. This year, in a classic case of putting the cart before the horse, the country will be holding its postal vote on the CIR before the Ministry of Social Development has finished its review of how the new legislation has been working. That review is not due to be released until September or October.
So far, the Act – and with it, the operational discretion available to Police on whether it is in the public interest to prosecute – appears to be working exactly as the law makers intended. Parents are not being criminalised en masse by the law change, as some had feared. In the one headline case where a Police prosecution was mounted, the jury agreed with the prosecution that the 50 year old parent involved had indeed committed an assault when he flicked his four year old child’s ear, pulled his hair and punched him in the face.
In July though, the public will not be asked to deliver a verdict on the law that was passed in 2007, or on how that the Police have administered it since. The referendum question is :“Should a smack as part of good parental correction be a criminal offence in New Zealand?” With the best will in the world, it is hard to see how any MP – or any citizen – who supported the verdict of Parliament could wholeheartedly answer either “Yes” or “No” to such a formulation, since it begs the question in at least two important respects.
One, It contains a value judgment about the context (“ good parental correction”) and secondly, it assumes the question of whether, under current Police procedures, such a smack can ever be a criminal offence. Essentially, the public is being asked to pass a judgement on a scenario that two years down the track, has not eventuated.
Still, that is the question that has been accepted by the Clerk of the House for the vote, and freedom of speech factors should carry a great deal of weight. After all, this is a procedure initiated by citizens, and official intrusion has to be kept to the absolute minimum. On the other hand, some $10 million of public money is likely to be spent on this process. For that reason alone, the procedures for CIR deserve closer scrutiny.
For answers, I consulted Dr John Parkinson of York University in the United Kingdom. Parkinson, a New Zealander, has written extensively on issues of direct democracy, With good reason in the past, Parkinson has criticised the high hurdle that any citizens initiated referendum in New Zealand has to meet before it can trigger a ballot. The organizers are given only one year ( plus a brief extension in extenuating circumstances) to collect supportive signatures from ten per cent of the voting population.
In this case, that meant Larry Baldock and the other organizers of the ‘anti-smacking’ CIR had to gather about 285,000 signatures – which boils down to a requirement to gather on average, 781 signatures each day, every day, for an entire year. No wonder very few CIR ever manage to make the signature target. When taken together with the high 5% threshold for MMP, it is another reason why politicians should never be trusted to write the checks ( or cheques) and balances on how democracy should operate. Compare the New Zealand situation with Switzerland, which gives campaigners 18 months to gather 100,000 signatures – or just 1.75% of registered voters, at a rate of only 182 a day.
On the other hand, Baldock may care to rethink his previously stated enthusiasm for California’s citizens initiated measures. As I pointed out a year ago, the threshold for initiatives in California may be only 5% of voters registered for the previous elections for governor, but these must be gathered in only 150 days, at a rate of 2,492 a day – and while the result is binding, such statutes can be ( and regularly are) struck down subsequently by the courts, on constitutional grounds.
First, I asked Parkinson this question : How do other countries manage, if at all, the issue of leading or loaded questions in CIR ? “The New Zealand CIR institution,” Parkinson replied, “ is unique, because there is no draft law being voted on. In those US states which use the device, CIR are not “questions” but complete laws or constitutional amendments. You have to have a legal team to draft a complete Bill, and that’s what gets sent to a vote. In Switzerland, initiatives take the form of constitutional amendments. Thus, Swiss and US voters have a lot more to go on than New Zealand voters do. The latter have just a vague statement of intent which Parliament (which is sovereign, remember, not ‘the people’) has to interpret, consider and respond to.”
Also, Parkinson adds, no one else in the world operates an ‘acceptability’ test for CIR questions. “In the US, any such requirement would breach the First Amendment. Instead, they leave it up to other groups to come up with competing propositions, and put all the competing ones on the same ballot. It’s a ferociously expensive process, which means only the very well-funded have any chance. In Switzerland, they handle it by means of (a) delaying tactics. The Federal Council can choose any time it likes to hold the vote – and (b) government counter-proposals which go to a vote at the same time as the citizen’s initiative. Counter-proposals almost always win. In other words, no-one tries to filter out bad ideas in advance. They trust to the competitive democratic process to reveal the flaws in proposals. Having options [counter-proposals] helps.”
Thirdly, he says, questions are vetted in New Zealand, once they have passed the signature target. The precise question has to be agreed between the Clerk of the House of Representatives and the proposer, so that it meets the requirements of the CIR Act 1993. “ The ‘leading question’ issue has not come up in the three previous CIR that went to a vote,” Parkinson says, “but one, the Withers referendum [ on crime, held in 1999] clearly breached the requirements of the Act in that it asked at least four separate questions. Mr Withers was extraordinarily resistant to the Clerk telling him to simplify it, and my interpretation of the correspondence between them is that the Clerk thought there was no point continuing an unpleasant fight when the vote would not make a difference anyway. That is my interpretation, not the Clerk’s. I don’t know what the process was in this case.”
Should loaded questions be ruled out? Well, in defence of the organizers of this year’s referendum, it is certainly not unknown for even government–initiated referendums, much less CIRs, to ask value-loaded questions. John Howard’s Australian republic referendum in 1999 for instance, was not shy about assuming the outcome that it sought, and nor was Augusto Pinochet’s ‘defence of the dignity of Chile’ referendum in 1988. Only those who didn’t care about Chile’s dignity – or who were too gutless to defend it – could disagree with El General, and his modus operandi.
The second question posed to Parkinson was : Given the track record of low turnout in New Zealand on non-binding postal CIR held outside the context of an election, what sort of majority can fairly compel a government to pay heed – and does overseas practice on non-binding referenda give us any guidance?
In other words, if ten per cent of voters seek a CIR, and only 30 % of the public respond, and 80% of those that respond express the same opinion, what weight – if any – should be given to that result by the government ?
There are three camps on the “what weight” question, Parkinson replies. “ “One, ‘pure majoritarianism’ says that 50%+1 is the only justifiable decision rule, and turnout has nothing to do with it. The second “consensus” camp says that there’s no hard and fast rule, but the higher the winning margin and the higher the turnout, the more legitimate the outcome.
The third is a “super-majority rule” which says you need 50%+1 of total votes, plus a majority in most or all states, or among ethnic groups, or religions, or whatever the major cleavage in society is. The point of super-majorities is to ensure that small states or groups don’t get steamrollered by the big ones all the time.” The examples, he says, include:
- Australian constitutional referendums that require an overall majority of
voters, plus a majority in EVERY state;
- Swiss CIR that require an overall majority of the vote, plus a majority in
more than half the cantons.
Other examples ? “There are two kinds of turnout restriction,” Parkinson concludes. “In Italy, so called “abrogative referendums”, allow citizens to challenge laws, but they require a turnout of 50%+1.” Otherwise, compulsion can always settle the question of turnout. Australia, Belgium, Brazil, and 27 other countries have compulsory voting, and that effectively settles any legitimacy question about the turnout.
Overall, Parkinson comes down on the side of the obvious. “ My view is that, given the non-binding nature of the vote, a big majority on a low turnout is not as compelling as a big majority on a big turnout. If it’s binding, then I like the double-majority system – it forces people to try to persuade each other rather than just bully each other. The decision rule should still be 50%+1 though. I don’t have a considered view on the turnout requirement, but my gut reaction is to prefer compulsory voting – it becomes a badge of citizenship, and not a burden.”
Plainly, compulsory voting – especially on some lobby group’s pet CIR topic – is not a runner in New Zealand, Perhaps it should be, when a highly organized 10 % of the population can compel the wider public to spend $10 million on a process that Parliament, in its considered wisdom, is then free to ignore.
At the very least, the Key government will be wanting to wait and hear from the MSD review of the current law – and how it is operating – before reaching any decision. Unfortunately, the public will not be able to do likewise – by Gordon Campbell
You say that “questions are vetted in New Zealand, once they have passed the signature target.” This is incorrect. They are publicly notified and open to submissions BEFORE the petition is started as required by the legislation. http://www.legislation.govt.nz/act/public/1993/0101/latest/DLM318463.html
http://www.legislation.govt.nz/act/public/1993/0101/latest/DLM318469.html
You’re right Gordon, that it is very hard for a supporter of the current law to know how to vote on the bent question being posed in this referendum.
That is why the Yes Vote coalition, http://www.yesvote.org.nz, is organising to give supporters of vilence-free parenting to vote Yes in the forthcoming referendum.
Opponents of the law have a clear “No” choice.
The only way to counter that effectively is to vote “Yes”, and the coalition of family-focused organisations – including such unimpeachable bodies as Barnardos and Plunket – is campaigning hard for a strong “Yes’ turnout.
People who vote NO in the Referendum also support violence free parenting. They simply don’t buy the notion that a smack on the bum is violence or child abuse. That’s why 80% of the population continue to oppose the law change which has had no effect on the rate of child abuse or deaths.
Violence is violence and If someone were to smack Bob on the bum I think he would buy into the fact that a smack on the bum is violence.
Mr McCoskrie,
69% of the population don’t _understand_ the law: “Slightly over 50% incorrectly stated that it is always illegal for a parent to give their child a light smack, and 14% said they did not know what the law covers.”
25% agree with it, 65% disagree and 8.5% are ambivalent – where do you think that 69% of non-understanders are placed in the population?
Source: “Attitudes on Parental Discipline Poll Mar 2009,” Curia Market Research, prepared for Family First New Zealand.
If you ask children how they perceive the so-called “loving smack” they will tell you it is hitting – it causes confusion, fear and resentment. It is violence and pro-smackers need to face up to this.
A survey of a representative sample of NZers in 2008 showed that 43 percent of people support the law; 28 percent oppose it; and the remainder were undecided.
Opponents appear to be in the minority, albeit a vocal one.
And from that same survey by the Children’s Commissioner and quoted by Deborah
“Respondents were asked their level of agreement with the statement, There are
certain circumstances when it is alright for parents to use physical punishment
with children.
About three in five respondents (58 percent) agreed that there are
certain circumstances when it is acceptable for parents to use physical
punishment with a child (7 to 10 on a 0-10 scale). Twenty percent were neutral
(4 to 6 on the scale) and 20 percent disagreed (0 to 3 on the scale).”
Yes Gordon it was hard work collecting 781 signatures on average a day. We needed a dedicated team. While California’s daily rate would be higher as you so rightly point out, at around 2492 a day, it would be easier amongst a population base of 36 million instead of 4 million. The fact that it would be binding would also be a more motivating factor.
I will submit a response to some of your other points on S59 later today,
cheers,
In regard to wasting millions of dollars that is something you can only blame the previous Government for, since the referendum could have been held at the 2008 elections thus ensuring significant cost savings and a better voter turnout.
Larry, Bob. Tell me, why did you pick such a deliberately confusing question?
And given this, how can anyone possibly interpret what the eventual result of the referendum means in policy terms?
Essentially, the public is being asked to pass a judgement on a scenario that two years down the track, has not eventuated.
The question is “should a smack… be a criminal offence”, not “should parents be criminalised”. The former has eventuated for the first time for any correction brought before the court, because parliament intended light smacking not to be a criminal offence, but passed the law making it so by removing the legal defence.
Unfortunately, the public will not be able to do likewise
You should talk to the Labour Party about that. It was it that set the referendum date.
Larry and Bob, don’t blame the government or anyone else apart from yourselves for spending the money on this referendum. You guys started this when you started collecting the signatures for this referendum. You are wasting my hard earnt tax payer money on a stupid misleading question!! The law was changed for a good reason: to protect children from all kinds of assault. Before the law change children had less protection from assault than my pet rat!!!
Why are you guys so afraid of children and their right to be free from violence? You constantly contradict yourselves saying the government and society should be protecting children from abuse yet you adovcate for the right to hit children.
Hitting children teaches children it’s ok to hit!!!
Bob,
1) 90% of politicans supported the bill.
2) front-line agencies report that THE LAW CHANGE IS WORKING
3) read 2) again.
4) You incessantly rang your Town Crier bell that if the law was passed that the Courts would be clogged with parents prosecuted for slapping their kids hands. The sky was falling. Well, it hasn’t happened.
So…Why, oh, why are you persisting in this pedantry?
Why (during a recession!), are you wasting TEN MILLION DOLLARS OF TAXPAYER’S MONEY on a referendum that is non-binding and historically doomed to fail?
Imagine how much victim support a taxpayer grant of ten million could provide? But, no…for the sake of your ego, you prefer to peddle futile obsfucation in the face of reality.
You sir, are a disgrace to commonsense.
On the contrary Megan if a reasonable distinction is made between a smack and a thrashing there is no research to suggest that smacking a child teaches them that violence is ok.
New Zealand’s own Otago University study, which followed the development of 1000 children born in 1972-73, reported in 2006 that “study members in the ‘smacking only’ category of punishment appeared to be particularly high-functioning and achieving members of society.” According to Dr Millichamp, the big problem is that a lot of the studies have lumped a whole lot of forms of physical punishment together.
I want to assure you that my wife and I have never been afraid of children. We did meet a number of teachers though when collecting signatures that were about to give up teaching because of the violence and abuse they were being subjected to in the classroom, sometimes by very young children.
Parents are responsible primarily for correcting their children, unless of course you take the view that children should never be corrected.
All correction is going to involve some form of pain, either physical or emotional. The removal of privileges and other non physical forms of correction cause some children extreme pain. In fact when collecting signatures we were often approached by young children as young as 8-9 yrs who wanted to sign the petition because they considered a smack a much better form of discipline than denial of television watching.
All children can be different and the decision concerning which method of correction is best for each child should be left to the parents who know them the best.
The State has a responsibility to ensure that any correction does not become abusive and damaging to the child. That is what the law did reasonably well before it was amended.
In the one headline case where a Police prosecution was mounted, the jury agreed with the prosecution that the 50 year old parent involved had indeed committed an assault when he flicked his four year old child’s ear, pulled his hair and punched him in the face.
There’s another, less prominent because the man charged wasn’t such a publicity hound as Mason: that of the 33 year-old Masterton father, who was convicted of assault after throwing around his eight year-old son and “smacking” him to the extent that it left bruising so severe that his mother felt the need to take the photographs that became evidence in court.
The man was sentenced to nine months’ supervision and sent to anger management counselling. A good result, you would think.
But not according to Bob McCoskrie, who has repeatedly refused to endorse the verdict and has claimed that “There may have been relationship issues between the mum and the dad, you know it may just have been a bad day.” He also said the case was “the first of what’s going to be many cases of the law targeting good parents. Our predictions have come true.”
So Bob, assuming you’re still here: are you actually seeking a law change that would make what that father did to his small son not assault? I’d like that on record.
As mentioned earlier here is a more detailed response to your article.
Gordon, you have written a very comprehensive piece on New Zealand’s CIR referendum and have made some interesting points on what could be or should be.
As the petition organiser I fell I need to make a couple of responses that I hope will be published on the site.
It is disappointing that despite your considerable research you still do not seem to know what the amendment to Sec 59 actually did. You have claimed that the amended S59 of the Crimes Act removed “the defence of ‘reasonable force’ in cases involving parental violence against children.”
If I may quote from the Act itself, S59 (4) The purpose of this Act is to amend the principal Act to make better provision for children to live in a safe and secure environment free from violence by abolishing the use of parental force for the purpose of correction.
The purpose was to make children safer and by implication to reduce child abuse by ‘abolishing the use of parental force for the purpose of correction,’ not by ‘removing the defence of reasonable force.’
The new amendment did not remove use of the term reasonable force from S59 entirely, nor did it prohibit the use of that reasonable force. It only prohibits the use of reasonable force for the purpose of correction.
Despite all the claims made by supporters of the law that this was not going to affect good parents who believe in using a smack occasionally to correct their children, the clear intention of the new S59 of the Crimes Act is to stop parents from using any form of physical discipline.
Sue Bradford has always talked about parents who hit their children and she consistently refuses to make any distinction between a smack and a beating. Brian Edwards “cannot conceive of any parent that would hit their child.” They and the few supporters of this law change are entitled to their opinions and to choose their own parenting style. I do not support, however, their attempt to force their opinion on all good Kiwi parents.
In a summary of nearly 50 case studies of actual court decisions over a 13 year period prior to 2007 that I have read, any discipline the court considered to be an act of violence and without justification was properly prosecuted. In less than 15% of those cases, upon hearing all the facts the jury, or judge decided in favour of a S59 defence of reasonable force.
Under the new S59 a smack may be acceptable if it is for one of the purposes approved under the new S59, but it is a criminal offence to smack a child under any circumstances if it is for a corrective purpose.
You claim that, “parents are not being criminalised en masse by the law change, as some had feared.” However, every parent that continues to use reasonable force for the purpose of correction (even forcibly requiring a child to spend time in time out), becomes a criminal automatically.
If I steal a packet of chewing gum from the corner dairy have I only become a thief, a criminal, if I am caught by the police and prosecuted? Or does the simple act of breaking the law make me a criminal?
The very basis of good parenting, which is to live a life of example for your children by being a law-abiding citizen, has, for many parents, been completely undermined by this law.
The permissible exercise of reasonable force in certain circumstances allowed by the Bradford amendment assumes that the majority must know what good parenting is! Surely then, our referendum question, which asks whether a smack administered by the same good parents for the purpose of correction should be a criminal offence, does not require some difficult value judgement about the context of good parenting as you claim?
It is intended to address the one thing that the Bradford law changed. A smack as part of good parental correction was permitted under the old S59, provided the use of force was ‘reasonable in the circumstances’. Under the new law a smack is a criminal offence, if it is for the purpose of correction.
Supporters of the law change such as yourself, constantly claim the law is working well. Since our child maltreatment deaths continue as they did before it is hard to know what the basis is for such claims.
It suggests to me, that by referring to the recent case in Christchurch where Mr Mason was found guilty of assault, you do not perhaps realise that the old S59 would have been sufficient for such a verdict. The unusual situation was that Mr Mason was one parent who decided he would plead ‘not guilty’ to the charges.
I would be the first to agree that it is true that since the law change in 2007 there have been very few parents who have considered it worth the time, money and risks to mount such a defence. What we can document is a growing number of parents who are being persuaded to plead guilty to charges involving minor acts of discipline for the purpose of correction, and this hides what is really occurring.
It is now easy to claim that no innocent parents have been prosecuted, since once a parent has pled guilty, they can no longer be considered a good parent that has been wrongly prosecuted can they?
If the law was truly working well, we should be seeing at least a decent increase in the prosecution of those parents and caregivers who inflict abuse on children. After all, that was the number one reason given to justify the need to repeal S59. Sue Bradford’s original bill was to repeal S59 altogether because she believed it was allowing child abusers to avoid prosecution.
There is no evidence that I am aware of that shows that since the law change, the police are bringing more of these thugs to our courts.
What is happening though, is that the difficult task of parenting has now been made even more challenging, by the State removing any authority from parents to use reasonable force in any form to correct their children.
Hundreds of police officers, teachers, social workers and front line Plunket and Barnardos staff signed the petition because they believed that the vast majority of parents know the difference between the occasional use of reasonable force for correction and an abusive beating.
The referendum will settle once and for all what the majority of New Zealanders think about it.
Given their claims made by Deborah above that 43% now support the law change I cannot understand why the supporters of the law change are so afraid of a simply referendum!
16. Larry Baldock, 8. June 2009, 19:03
“What we can document is a growing number of parents who are being persuaded to plead guilty to charges involving minor acts of discipline for the purpose of correction, and this hides what is really occurring. ”
please provide documentation to back this statement up.
For Mr John Pilk and others wanting to see the real cases of parents being affected by this misguided, ill-conceived new law go to this site.
These have all been investigated to ensure their veracity before being published.
http://www.familyfirst.org.nz/index.cfm/issues/anti_smacking_bill.html
Larry/Bob,
What level of reasonable force on a child do you find acceptable?
Is it a smack on the bottom with an open hand?
2 smacks on the bottom with the open hand?
A hard slap across the face leaving bruising?
A punch on the face leaving bruising (including a black eye)
Hitting a child with the following implements:
- Steel/plastic vaccum cleaner pipe
- electric flex
- 4×2 timber
- iron crowbar
Time for you two to put your money where your mouth is and cut the PC spin bullshit. Do you think it is OK for parents to hit their kids, and how hard do you think its OK to hit your kids.
Larry, how have those cases been investigated? Can you please give us the details of each case (change the names if you like), how they were investigated, and the results of those investigations, so that we can draw our own conclusions as to the veracity?
The case studies don’t seem to back the claim that large numbers of parents are pleading guilty to anything, which was Larry Baldock’s particular claim. They might at a pinch show what a finer line govt social services walk when they deal with dysfunctional families.
Otherwise, however, I found Larry interesting in his reasoning. One thing we shouldn’t try to deny is that there is a deep ideological divide between those of us who think that hitting children is wrong and should not be a legtally sanctioned part of the parental armoury, and those who regard it as a necessary weapon.
Having said that, I think wed make too much of this issue. If I steal sweets at the dairy, I guess I am automatically a criminal, and generally I will feel guilty about it afterwards. That pretty much sums up my experience of the use of smacking too.
“For Mr John Pilk and others wanting to see the real cases of parents being affected by this misguided, ill-conceived new law go to this site.
These have all been investigated to ensure their veracity before being published.
http://www.familyfirst.org.nz/index.cfm/issues/anti_smacking_bill.html”
Well and so, let’s have a look at them:
Oct 2008: Daughter upset about being slapped on the leg, complains to CYF, father charged by police. Charging officer “expresses concern” with making the charge and explains that “the way the law was worded he had very little leeway.”
- The hell. S59(4) of the Crimes Act specifically states that the Police have the discretion not to prosecute if the offence is considered inconsequential. More likely the officer was basing the decision on operating rules set by the Police, or in fact thought that the slap on the leg wasn’t inconsequential at all.
Nov 2008: CYF are told by parents that they hit their children, and require the children to be removed until the Police can investigate.
- I’m not sure what the problem with this one is here. Don’t you want the Police to check whether the “offence is inconsequential” or not?
Jul 2008: A social worker is told by parents that they sometimes smack their child, and the social worker insists on a private interview with the child to find out his point of view. The family are referred to CYF.
- Am also not sure what the problem is with this.
Sep 2008: A woman asks her child’s friend if he’s being hit, and suggests that if he is beaten by his mother, he should go to her house. The family is referred to CYF.
- Seriously, most of the flyers I get from Barnados telling me what they’re doing with my money talk about organising safe places for kids to go if there are ructions at home, I really can’t see anything objectionable about this one. Oh, and CYF got a referral and checked it out. Again. Isn’t that their job?
Oct 2008: A mother hits her child at her workplace and is suspended from work. Her employer threatens to refer the case to the police and to CYF.
- My objection is that the employer didn’t go to the police and CYF straight away.
Nov 2008: CYF get a complaint that a child has been smacked and require her to be moved elsewhere for the night. After investigation it turns out to be a false complaint.
- People, most of them grown-ups, make false complaints about other crimes – assault and rape among them. That doesn’t make them not worth checking out.
Mr Baldock, this list of examples is seriously not endearing me to your cause.
Regards,
Stephanie
Larry, that’s a great list. Many people who were frustrated lashed out, often reported by their own children in the aftermath. The police and courts all saw them as trivial, a few went on to be discharged without conviction, most never got that far. The fact it got anywhere made the kids regret dobbing them in. The dickhead playing smackies in a moving vehicle should’ve lost his license, but other than that, no big deal.
What’s the problem? No one’s been “criminalised” for a light smack, though they have been investigated when a complaint was laid with police (just as they would have under the past law, or any theoretical future law). Your referendum question fails again.
I think being protected from violence is a basic human right and should not be up for change in any fashion, basically.
I’m going to spoil my ballot in the referendum by writing this in, and I advocate others to do the same.
A small but important correction is needed for dewar bape’s comments.
If you go back and check my comments you will see that I said I “a growing number of parents are being persuaded to plead guilty,” not “a large number” as you stated.
I have never expected in the short term for there to be large numbers of prosecutions of good parents, after all that would never be acceptable and would kill this new law very fast.
The plan by the law’s supporters is to change things over time. Remember the purpose of the law as I quoted from the Act is to abolish “the use of parental force for the purpose of correction.” (and I think I could quite rightly add the word ‘eventually!’)
Another words eventually no parent in this country would feel comfortable smacking their child without the possibility of consequences from law enforcement.
All those of you who feel so strongly that a child should never be smacked will no doubt cheer , and say hurray, and may that day come quickly!
But people like myself and my wife, (and many Kiwi Mums and Dads) who have raised great well adjusted law abiding, socially engaged children, ( in our case, two of which have themselves married and are now raising two children each) would say hang on a minute, what is this all about.
We smacked our children often, and if we were parenting today, we would be breaking the law. If we continued with our style of parenting we would be in danger of prosecution at some point surely, and the possible interference by CYFS. The ‘discretion’ exercised by a police officer, or after a second ‘offence’ possible a young single newly graduated social worker from CYFS, may lead to some serious outcomes for our family.
and Why? Because a small number of people in this country think any form of correction is abuse, and I happen to think that no correction at all is just as abusive.
As I said earlier the Otago Study, and many other international studies that distinguish between proper correction and violent abuse, show that my wife and I have not done any harm to our children. (The best research would be to ask them)
Research into the causes of child abuse show that the key factors are drug and alcohol abuse, relationship breakdown and violence in the adult relationships, and stress resulting from poverty or other economic factors, this new law is unlikely to do much to change our child abuse statistics.
Just as a wee aside, research shows that children are at least 50 times less likely to suffer physical abuse when they are living in homes where both their biological parents are also living in a married relationship.
The real issue here is that regardless of how many good parents at this stage are being charged with assault, most parents now feel they have less support from the law than they did before when it came to trying to correct their children’s unacceptable behavior.
Most people accept that the police and our corrections department must sometimes use reasonable force to correct the unacceptable behaviour of adults that will not live by our societies rules. When a police officer forcibly restrains someone, uses a taser, or ultimately a firearm, we have recognised that something needs to be down about the adults that need their behaviour corrected. Only when a police officer looses his temper and beats a suspect, or prison guard beats a prisoner, do we call it abuse.
Before this law, since parents were responsible for the behaviour and training of their children, they could also use reasonable force for correction, provided the child was not bruised and abused.
Now parents can only try persuasion to get a child to conform or behave. What if that does not work?
Can they call the police and ask them to deal with the situation?
Is that what kind of a society we want to create?
Maybe some want to see the Police abolished and all prisons closed as well!
You can be sure that if the child does not learn to control its own behaviour as they grow to adulthood, it will be the police they encounter, and the police will not be offering a few candies if they promise to be good, or suggesting the loss of the use of their ipod.
The good news is of course, that in a free society, if anyone decides to get married, and raise a family, they can use whatever parenting model they feel is the best way to raise their children, and the proof is usually in the final product, or pudding as we often say.
At least that was the way it was! Now my children would have to parent the way a small minority of so called experts say they should.
Our referendum will give all NZers the chance to say whether they agree with those experts or not.
Till then, the arguments will continue I am sure.
Tussock, I think your summary of the cases is a little flawed to say the least and does not take into account the trauma these parents will have experienced. How about the Grandfather who spent the weekend in police cells for tipping his grandson out of a chair?
Read them a little slower and be a little slower to judge perhaps.
My wife and I fostered CYPS children for a few years so we have some idea about how it all works. I would be horrified at the prospect of my children or grandchildren ever being taken from their home and put into CYFC care. It can be a real battle to get them back.
In response to Basil Emes,
Each of cases were personally contacted and interviewed to make sure of the details and that they were prepared to have their situation reported. Many of course are not willing to have anything made public, even with names changed etc, for fear of further consequences.
For that reason we cannot say how many cases there are. I don’t think anyone really knows for sure.
What we should be able to see is an increase in the real abusers being prosecuted. Where is that list???
Larry, given your campaign’s history of disinformation and quoting out of context, without full information on the details of each case, I don’t think anyone other than the very gullible will believe your claims. It’s time to put up or shut up. Where are your facts?
I’ll go even further and say that you are endangering democracy by abusing the system. While you happily distort the truth and use innocent children as fodder for your populist political agenda, you endanger the very institutions that democracy is built upon. After presenting such a stupidly worded referendum question and wasting $10m of public money that could have been spent better on just about anything else, who is going to pay attention to referenda in the future?
“How about the Grandfather who spent the weekend in police cells for tipping his grandson out of a chair?
”
So you think it is OK for a man to tip a child out of his chair? What if he hits his head and breaks his skull?
I ask you again larry, What force on a child would you regard as acceptable? Would you count hitting a child with implements to be acceptable?
You say you smacked your children ‘often’. Does that mean you smacked them for the slightest offence? I hate to be your child Larry. ill get smacked for breathing in the wrong direction
Do you think a father hitting his 13 year old daughter with a rubber hose pipe was using reasonable force?
Im sorry but hitting children, and grumpy old buggers like you who get off on hitting people who cannot hit back deserve contempt.
Larry: in response to your comments:
TL;DR
Vote YES to smack the faces of of the fools who initiated this referendum.
I thougfht about just deliberately spoiling my ballot paper, to show my disagreement with both Yes and No. But on reflection especially after reading Brian Edwards blog I now think a better option is YES. I wonder a bit about the mental/emotional state of those who like to hit children. Smack! “There you are I smack you because I love you.” Huh??? Smack! “There you are my lovely wife. I smack you because I love you.” Huh???
larry,
i was hoping for some hard statistical evidence to verify your statement that ‘…a growing numbers of parents are being persuaded to plead guilty’
Ideally, the number of parents investigated, prosecuted, appearred in court, whether they were found guilty or not, over the timeframe since the law change was passed. I’d like to see similar data for the same period before the law change.
Providing the irrefutable facts of this comparison to New Zealanders who wish to appraise this emotive issue objectively, would be far more useful than merely linking to your website.
Given the track record of low turnout in New Zealand on non-binding postal CIR held outside the context of an election
What “track record”? There has never been a non-binding postal CIR in New Zealand.
There has been only ever been one nationwide postal referendum (binding), turnout was 80.3%.
Also, as Bob notes, Parkinson is wrong when he says there is no vetting of questions until after the signtures have been obtained. The question must be approved in advance, and is subject to public input. The system is far from perfect, but worth noting because the characterisation is far from accurate.
You know it is always interesting to me how much aggression seems so be spewed from the mouths or pens of those so opposed to the discipline of children.
Some of your comments reveal a great deal.
“and grumpy old buggers like you who get off on hitting people who cannot hit back deserve contempt.”
“to smack the faces of the fools who initiated this referendum.”
I wonder who really needs the anger management classes?
Someone said earlier it is an emotive issue. I have tried to put forth some of my reasons as clearly as I could without saying anything nasty about those I strongly disagree with.
In response to MR Pilk who asked for more data, I agree it would be nice to have as many facts as possible. Theses are difficult to obtain but we are doing our best with OIA’s to the police so intelligent comparisons can be made!
As I said all the 20 plus case we have listed on the link above were interviewed and verified, and a senior police officer has verified the ones that were chaged amongst them.
I have continued to ask people like Sue Bradford to give evidence that her new law is making it possible for the police to prosecute those who really abuse their children and that the law has made children safer. After all she has the resources of parliament at her disposal, yet nothing has been published yet that has any veracity. Only constant claims that the law is working well with no facts to back it up.
If you want a link to the review of all the cases over the past 13 years let me know.
Otherwise I think this discussion has pretty much run its course and served its purpose as far as I am concerned.
Don’t forget to fill out your ballot paper! Democracy means the people of New Zealand having their say and I am confident they will. I will accept the result.
First of all – Rich – don’t spoil your ballot. You and people like need to vote YES at this referendum. There is a campaign building to give supporters of the current law a real option – irrespective of the weird question.
Secondly, Larry, I agree with you that the bile is unnecessary. Unfortunately, I see as much if not more of it from the promoters of the referendum, with yourself a notable exception.
The mendacity and nastiness of Family First particularly depresses me. I hope that Yes voters can set a better standard consistent with their non-violent vision.
Larry.Do you think that since the Repeal has already been passed, then it is the job of those who want to smack kids to prove that the Repeal of S59 should be repealed/reinstated? I cannot see that you have proven your case for Repeal of the Repeal.
There are some countries where the Law has been passed without a fuss and goes as far as “It is unlawful to smack/hit kids EVER.” Germany is the most recent I think. NZ is becoming famous for the loudness of the cry to be allowed to smack.
I say ban smacking kids for any reason!
Larry,
I ask you again: What level of force on a child do you consider acceptable?
I urge all people of goodwill who want their own and other peoples’ children to grow up in a non-violent society, to vote YES in the forthcomng referendum. The Act has been working satisfactorily for two years; the longer it is left in place as the norm for parental behaviour in regard to disciplining their children the more acceptable will become the practice of rearing children without recourse to any form of hitting. Corporal punishment in schools was objected to by many people initially: now it is taken for granted that caning and beating in the classroom are things of the past in New Zealand state schools.
“It is intended to address the one thing that the Bradford law changed. A smack as part of good parental correction was permitted under the old S59, provided the use of force was ‘reasonable in the circumstances’. Under the new law a smack is a criminal offence, if it is for the purpose of correction.”
I was under the impression that the current law explicitly protects “inconsequential” assault. I’d argue that “good” parental correction must imply inconsequential physical hurt, thus there is no way to use the referendum to oppose the amended law.
While I never thought that smacking had any major effect on the character of those who grew up with it, (apart from a sometimes increased tolerance towards corrective violence) I’d heard good evidence that smacking is a statistical risk factor for child abuse. Are you claiming you’ve got research that suggests otherwise, Larry?
Personally, I think it wouldn’t do any major harm even if smacking were categorically illegal, as there are better ways to raise children out there and people who are willing to assist parents in incorporating them into their family lives if they so wish. Why would anyone bring violence, however trifling, into their homes when they don’t have to? It’s a viewpoint I just cannot sympathise with.
Anyway, I really hope this referendum leads to petitioners having to put up actual draft laws with their referendums instead of getting to pick their own language. That would be much fairer, and would involve better-informed political debate and more healthy direct democracy in New Zealand- especially if they could be binding.
I’ve just collected a leaflet out of my letterbox.
It contains Baldrick and McCrustie’s poorly worded “question”.
Why should Parliament take any notice of this referendum when the question can be interpreted in multiple ways – and is phrased in extremely loaded language ?
These two clowns get to waste $10m of our hard earned money – funds which would be better spent on teaching parents positive ways of leading their children to do the right thing.
Shame on you both.
I assume that Family First still have the names and adresses of the 300,000 people who signed their previous petition. They should ask each signee to donate $30 towards the cost of mounting this latest postal ballot, that should cover the $10 million that the remaining 90% of the populace who DON’T agree with them, are having to fork out in tax dollars.
All for a referendum, the result of which, according to the PM will not change the law as it stands, anyway.
I do wish that Bob, Larry et al would put their money where their mouths are.
David Morhouse,
It wasn’t Bob McCoskrie or Larry Baldock who fronted the petition with the poorly worded question
I cant help but feel that this referendum is a waste of time for two reasons. The terrible phrasing of the question, and the fact that it has no relevance to the current law. I am dissapointed that this petition was carried out with a question that was so blatantly leading, that someone who supports the law in its current state finds it hard to say yes to it.
Having said this it seems like this debate is important but also focuses on only two options – Sue Bradfords amendment, and the original law.
It is obvious that both of these forms of the law are opposed by a large proportion of the population.
So i would like to ask Mr Baldock if you believe this is the best way to tackle this issue. It seems that we all have the same aim – to ensure the safety and wellbeing of all children in New Zealand. I believe all children have a right to this. The argument lies in the best way to ensure this. I am worried that you seem to be more aggrieved by parents being prosecuted than by children being beaten. I believe that the safety of children is the paramount issue here.
The original law left a loophole through which courts may have found they could not punish child abusers. I find this unacceptable. The wording reasonable force is blatantly open to all kinds of interpretation. I even noted that your petition does not contain these words instead it contains “as part of good parental correction”.
So you are not openly in favour of the original law.
What we clearly need is a new version of the amendment that is very clear, very explicit and effective in ensuring that no child can be abused.
Your argument worries me because though you argue for your own rights, and you ignore the fact that the people who lose rights when you gain them are the children who are being abused in New Zealand. They lose the right to be free from any form of violence. If you really put families first shouldn’t you be campaigning for the safety and wellbeing of these children?
I know you belive this law change did not significantly help the situation, but maybe you should try and help the situation. You have put so much time, effort and money into arguing for your rights, Im dissapointed that you cant get on side in putting children ahead of yourself, and focus on a way to keep every single child in NZ safe.
The final thing that worries me is that not every parent uses smacking in the calm, controlled manner in which you describe it – some parents will smack their kids when they are annoyed, when they have had a bad day – and under your laws this is acceptable and I dont think I agree with that.
Mr Baldock — why ask such an ambiguous question?
If what you want to know is whether the majority of people who vote in a referendum want s59 repealed why not ask that directly?
Instead we are getting (yet another) very poorly worded referendum question — inevitably any result is meaningless.
The $9 million could be better spent teaching people how to write unambiguos questions.
Smacking a naughty child is not violence, but the way Sue Bradford rewrote the law, IT IS ILLEGAL except in certain circumstances to smack a child.
It is up to the descretion of the police to not prosecute.
I don’t have any problems with the wording. If you don’t understand it, you’re too thick to vote, or need english lessons.
And it wouldn’t have cost as much if we never had crap law made, or if it was held at the same time as the general election.
Good-oh Brian, I’ll give you a smack then if it’s not violence. The only reason that you think it’s not violence is because you believe you can control yourself and only administer “correction”. Maybe that’s what Nia Glassie’s tormenters thought as well. I have never, repeat never, smacked my children. I never needed too. You can actually be a good parent without it – if you’re prepared to try. I still have visions of the strongly religious folk behind this CRI confronting their god and saying, “Yes, with the gift of life you gave me, I put a huge amount of time, effort and expense into fighting for the legal right of parents to hit their children. That was the best thing I could think of to do with my time.”
Larry Baldock says was is at the root of smacking.
Parents lack authority unless they can use physical punishment.
That says more about the parent than the child.
FIrst the parent is either underserving of children, or him/herself the victim of violence, or under stress.
These are not sufficient reasons for using physical punishment.
First for the underserving, learn how to relate to your child in such as way as you earn your authority without imposing it by fear.
Second, if you are a victim of violence, don’t celebrate it, do something about it, get some counseling.
Third, if you are under stress, then don’t take it out on your child, find out how to deal with it as an adult. You could start by asking your child for some advice.
to
Brian Marshall, 18.
you state
“…It is up to the descretion of the police to not prosecute…I don’t have any problems with the wording. If you don’t understand it, you’re too thick to vote, or need english lessons.”
1) ‘descretion’ is spelt incorrectly, it should be ‘discretion’
2) ‘english’ begins with a capital letter, as in ‘English’.
By your own criteria, you need english (sic) lessons and therefore must be too thick to vote. So can I assume you won’t be voting then?
BigMIke…
I am So Lucky That I found your blog and great articles. I will come to your blog often for finding new great articles from your blog.I am adding your rss feed in my reader Thank you…
I have searched high and (mostly) low. Hot air abounds.
But where oh where can i find the ENTIRE ACTUAL WORDING OF:
A. The original law and loophole that allowed child murderers to get away with it.
B. The Bradford Amendment that attempted to put a stop to it, was passed by damn near the entire elected government, and gave the right-wing assholes something to do this year.
?
The exact previous wording seemed hard to come by, but basically said that “reasonable force for the purpose of correction” was a defence for parents against assault on the child.
I think Bradford originally planned to repeal the section, but the final bill amended it to:
59 Parental control
(1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of—
(a) preventing or minimising harm to the child or another person; or
(b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
(c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or
(d) performing the normal daily tasks that are incidental to good care and parenting.
(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
(3) Subsection (2) prevails over subsection (1).
(4) To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.
[http://legislation.govt.nz/act/public/1961/0043/latest/DLM328291.html]
(4) was insert in the final negotiations that brough National in to the vote.