For the Avoidance of Doubt

Coruscating Clarity

We have been gratified that virtually overnight the nation has become fixated upon clarity, clear speaking, and to all intents and purposes has decided that equivocation in matters of law or referenda is a serious cancer in the body politic.

This has to be a major step forward in the reformation of our nation. The matter at issue, of course, is the upcoming referendum on the galatically stupid and very harmful anti-smacking law. Critics have criticised the referendum because the question that it asks is allegedly unclear or ambiguous or is a "loaded" or "leading" question.

For example, one luminary has slammed the referendum question as follows:

The wording of the forthcoming referendum isn't just ambiguous, it's an indictment of the intelligence of those behind it. "Should a smack as part of good parental correction be a criminal offence in New Zealand?" No thinking person regardless of their personal parenting philosophy can answer that question in good faith.

We are grateful to Finlay Macdonald for that particular piece of coruscating brilliance. Another luminary, none other than the Prime Minister himself, has almost descended into whining that the referendum question is "so confusing that if you want to vote yes, you have to vote no". With all due respect to the Prime Minister, we are aware that the government education system is failing, but we did not realise that education and literacy standards had fallen so low in New Zealand that the following question would be unclear: "Should a smack as part of good parental correction be a criminal offence in New Zealand?"

Well, maybe it is unclear. Who are we to judge. After all, we are certainly not luminaries. We do not write op-ed pieces in prestigious newspapers. Neither do we hold high political office in the land. We are just plain ordinary run-of-the-mill simple folk.

So, duly chastened, we went in search of clarity. We found it. Not only did we find it, but it was a piece of writing approved by the very same John Key, Prime Minister of New Zealand, who put it forward as a way to clear up all the confusion that surrounded the issue of whether smacking a child would be illegal in New Zealand. Clearly, if you would pardon the expression, we could expect wording that was beyond reasonable doubt.

Here is the current, amended law:

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.

What on earth does that mean? Yes, dear folks, we have before us the paragon of clarity. Legalistic precision. Clear as mud.

This is John Key's version of clarity. This is the sort of thing which the Finlay Macdonald's of this world find to be crystal clear. It is so clear that nobody knows what it means. It is so turgidly dense that we are told that "subsection (2) prevails over subsection (3)" which is a clear indication that the two sections are contradictory. It is so opaque that is requires an "avoidance of doubt" qualification which says that the police are empowered to have discretion on a case-by-case basis to decide whether the law has been broken to the extent that it warrants prosecution.

Against the background of this legal morass--where the law has become in every possible way and sense an ass--we find the referendum question to be blindingly and refreshingly obvious, simple, and clear. It is so clear, in comparison, that it threatens to burn our eyes. It is so patently obvious that it does not even need a "for the avoidance of doubt" clause.

We are convinced that with the current law as the background, the child-smacking referendum question is offensive to so many precisely because it cuts through the legalistic obfuscation and confusion of the current law so cleanly. The question is focused, sharp, and honed to cut. It is succeeding already.

That is why John Key's opinion on the alleged confusion of the question comes across as whining. That is why Finlay Macdonald's scribblings are risible. The question can be asked, and answered in good faith, dear boy precisely because the law, as it now stands, is such a stupid, confused mess. A veritable dog's breakfast.

That is also why good parents in New Zealand are now intimidated by the State and live in fear. Mr Key has forgotten or chooses conveniently to overlook that having the State take children away from parents by force is a worse punishment than prison itself. It is the ultimate sanction any parent faces. And the de facto consequence of the current law is that it encourages the State to do just that, whether or not police decide to prosecute a parent for smacking a child to train and discipline him or her. That is why parents feel intimidated and cowed. That is why the current law is destructive and harmful and ultimately an evil piece of law.