Smacking, referenda, flaws, wordings and (gulp) abstentions…
The upcoming referendum on smacking is fatally flawed, but I disagree with critics who argue that the question is ambiguous.
The way I see it, it couldn’t be clearer. “Should a smack as part of good parental correction be a criminal offence in New Zealand?” It’s so unambiguous that it’s a leading question. It’s not beating up we’re talking about, but smacking. Not just any smacking, but smacking as part of good parental correction. And this wouldn’t result in some misdemeanour and fines, but in a criminal offence—the most serious category in our justice system. No-one in their right minds could possibly answer “yes”.
It doesn’t actually matter how you interpret “good”, because the fundamental question remains the same. If you ask me, the clarifier “good parental correction” limits it to smacks that are relatively light and physically inconsequential—a narrow range indeed. But regardless of whether you broaden or narrow what counts as “good”, whatever you consider to be good you won’t consider to be criminal. The only exception is if you don’t believe there’s any such thing as a “smack as part of good parental correction”, in which case it’s a bit of a null question, not a “yes”, because it can’t be an offence if it doesn’t exist, can it?
The referendum bears no relation to the Crimes (Substituted Section 59) Amendment Act at all. That law’s fourth subsection clearly allows an exception for inconsequential occurrences. That’s why Parliament passed it by 113 votes to 8. It prevents the misuse of the old Section 59 as a defence for people who beat up their children, while ensuring good parents aren’t criminalised for just a smack here and there. Supporters of the new law could just as easily answer to the referendum, “no”.
Taking the question word for word, then, the referendum is meaningless. Understandably, it motivated Green MP Sue Bradford to propose a bill to disallow questions that are ambiguous, complex, leading or misleading. It can sound like a nice quick-fix, but I doubt it would help. The applicability of those four words—even as they are defined in the bill—is by its very nature subjective. One side or the other is bound to disagree with every decision the Clerk makes—which does nothing for the credibility of a process that is supposed to enhance democracy. In any case, the Clerk of the House of Representatives is already supposed to vet questions so that they have a clear purpose and effect, and so that there are only two possibilities (ref). Evidently, it hasn’t worked.
But should it even matter? The biggest losers from having such a silly question are going to be the referendum’s proponents. The referendum will undoubtedly give the result they want. It’ll be a big “no”, and then lawmakers will do exactly what their mandate from the referendum is: absolutely nothing. The proponents will wonder why, and will probably start screaming and hollering about a government that “ignores the wishes of its citizens” or words to that effect—but it’s their own fault, by proposing a question that bore no relation to the law change they want.
How to vote, then, in a referendum as flawed as this? Supporters of the new law have argued that we should vote “yes’ to send a message that the law is working. I support the new law and I think it’s working, but I’m not sure that I’m prepared to lie in my response to some other question, just to make some political statement. Simply, I don’t believe that a smack as part of good parental correction should be a criminal offence. To vote “yes” would be to imply that the law needs to be changed. But I would oppose any such law change, so how could I vote “yes”?
The obvious answer, of course, is “no”, but therein lies the other dilemma. To vote “no” would be an implicit endorsement of the views of “no” vote campaigners, that the new law should be repealed. Sure, we might agree on the answer to the referendum itself, but I don’t want to add weight to their campaign. I don’t want to look like my views are aligned with theirs, or, worse, like I’m as uninformed about the law as them. So I can’t vote “no”, either.
I’m not a big fan of mass abstentions. The Youth MPs representing Green MPs at the 2007 Youth Parliament tried to stage one on the mock bill we were debating, and I didn’t think anything could’ve been more retarded. What they succeeded in doing astounded me: they united both sides of the (non-partisan) House against them. If it wasn’t unified disgust aimed at them, it was probably the next best thing. I reasoned at the time that mass-abstaining defeated the purpose of the exercise—people in any vote should just answer the question for what it is. If you support it, support it, and if you don’t, don’t. Abstaining is for those too indecisive or too weak to pick a side.
But I’m left with no other choice. There’s no way around it—the referendum is pointless. It was never going to be able to canvass the views of voters. It was never going to change the law. Those who support the new law while opposing the criminalisation of smacking must know this. A low turnout’s normally a bad thing, but here, it would show that the nation’s citizens aren’t willing to let our intelligence be insulted.
I never thought I’d ever do this.