Dogs' Breakfasts and Demagogues

Next Election More Interesting

Ideologues and demagogues were successful in New Zealand is getting a law passed in 2007 which ostensibly outlawed all physical discipline and correction of a child.  We say "ostensibly" because the actual statute is a dog's breakfast.  It outlaws smacking, but then it doesn't.  Here is the actual text of the law:

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.

So, clear as mud.  Smacking is permitted for certain reasons such as preventing a child engaging in disruptive behaviour, or if a parent is "performing the normal daily tasks" that are incidental to good care and parenting.  So far, so good.  But, such legal permissions are removed again in Section (2) which declares that nothing justifies force for the purpose of correction.  And then to add more confusion the Police are given discretion not to prosecute.  So a parent can (presumably) use smacking as a form of discipline and a complaint be laid with the Police, who can dismiss it if the discipline is considered "inconsequential" and there is no "public interest in proceeding with a prosecution."

Everybody clear?  Yes, we are very clear this particular law is an ass.  The law is so confused, contradictory, and subject to temperamental application by the authorities that parents--the vast majority of whom still use smacking as a form of discipline--have gone underground.  There is no doubt that smacking is still used as a method of discipline in New Zealand homes, but oh-so-quietly and discreetly.  Every parent knows that should they be arrested they will need a small fortune to fund a legal defence, their children will be forcibly removed from them in the meantime, and that they risk never have them returned by the state, even if charges are dropped or they are not convicted.  The law is such a confused mess of pottage that no parent knows what the outcome will be, but it will likely be very bad. 

The ideological extremists who promoted the law did so on the deceptive and misleading promise that if the anti-smacking Bill were passed, actual child abuse rates (which are high in New Zealand) would decline.  That promise is proving to be a falsehood, a lie.  Child abuse in New Zealand is still a major problem.  It has not abated.  All the anti-smacking bill has achieved has been to criminalise in principle the vast majority of New Zealand parents--and in actual fact, if they are caught, and the Police are in a bad mood that day. 

The election this year just got more interesting.  Colin Craig, standing for the Conservative Party, has promised that if elected, and if part of a governing coalition, he would require the repeal of Section 59.  He has also admitted that he administers physical punishment as part of his family's correction model.  Cue Shock, Horror, Outrage and High Dudgeon.  Sue Bradford, the Bill's original promoter, has rushed to the media, with the following febrile declamations and pronouncements:

The bill's architect, former Green MP Sue Bradford, said it was shameful that an aspiring politician was running an election campaign based on hitting children.  "I'm not surprised on his position on re-legalising child violence, but I am really saddened by the fact that he appears to be going into this election with changing the law on Section 59 as one of his main election platforms.  "He has even gone so far as to almost boast about hitting his own daughter. I think that's incredibly sad."

The Police reviewed Craig's statements and concluded that they would not be following it up:

A police spokesman said they were satisfied that Mr Craig's comments on radio this morning did not amount to disclosure of an offence.

So the Police have had a good-mood-week.  But law professor Bill Hodge has thrown an interesting curve ball from the pitcher's mound.

University of Auckland Associate Professor of Law Bill Hodge said even if police did not prosecute anyone could bring a private prosecution against Mr Craig if they believed he was breaking the law.

OK, Sue.  Since you are "really saddened" and "incredibly sad" about Colin Craig's shameful revelations, put your money where your mouth is, and bring a private prosecution against Craig.  If you are serious about your anti-smacking law, and you believe Craig is actually in breach, you have no choice really.  Either that, or we will be forced to conclude that your anti-smacking bill was just a piece of political propaganda not to be taken seriously by anyone, least of all by you.