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Posts tagged ‘section 59’

Success for referendum proponents

There are two days left, but in a sense, those behind the smacking referendum have already succeeded. There won’t be a law change, and I’m not making a premature call on the result. In the wake of the referendum, public debate has shifted. The question I hear on the radio, in the news, in columns and from both sides’ campaigns is no longer whether the Crimes (Substituted Section 59) Amendment Act is working, to the question referendum proponents want New Zealand to answer: should we be allowed to smack our children?

The “Yes” Vote campaign has not, as I expected, sought to correct the misinformation their opponents have spread. Supporters of the misnomered “anti-smacking” bill once contended that it would outlaw child abuse and not the odd inconsequential smack. Now, though, the main message of the bill’s supporters and the “Yes” Vote appears to be that parents shouldn’t smack, and all parental physical correction, no matter how light or heavy, should be eradicated from our society.

The “No” Vote must be ecstatic at this level of engagement. Because few campaigners have drawn the line between the law and the referendum, the idea that the two are the same question has become cemented in the public. That is exactly what the “No” Vote wants. The question on everyone’s minds is now, "should parents be smacking children?”, and it has become inextricably linked to the 2007 amended Bradford bill.

If this is a good thing, then those who supported the amended Bradford bill believing it wouldn’t criminalise smacking are becoming forced to reconsider their position. For the record, I’m not reconsidering mine. But now that the bill’s original supporters have revealed that they do indeed believe that smacking is wrong and that it should outlawed, there are grounds to believe that there might, just might, have been a hidden agenda to all of this. If the “Yes” Vote wanted a victory, then this was a poor tactic to take. If they wanted to nobly challenge social values, then why weren’t they upfront about it in 2007?

For their part, the “No” Vote has had an incredibly weak case and cannot deserve any credit. They, including Family First and the Kiwi Party, have presented no convincing examples that good parents were being affected by this new law. Their best poster-boy to date, Jimmy Mason who was convicted of assault, became a failure after it was revealed that he has not just ear-flicked but punched his child in the face—something the movement was quick to condemn. All the evidence is that the law is working as intended.

The standard arguments levied against abstainers and whatever “disrespect for democracy” do not apply to this referendum. In any indicative vote, as opposed to a decision-making one, the strength of the result is as important as the direction. The Government must take the margin and turnout into account. In this particular one, the question is leading and irrelevant. Refusing to take part achieves more than asking a silly question, and is a more “positive” response than engaging with it.

With 1.3 million votes already sent in last Thursday, the turnout looks set to be reasonably high. People on both sides are asking whether smacking is okay, and the new law remains misunderstood by most Even if the result is predictable, it won’t matter. In a far more significant way, the “No” Vote campaign has already won.

Technorati Tags: smacking,referendum,section 59

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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.

Technorati Tags: referendum,smacking,section 59,citizens' initiated referenda

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Referendum asks an irrelevant question

If you asked me, “Should a smack as part of good parental correction be a criminal offence in New Zealand?”, I would say no, of course.

And of New Zealand’s 4,268,206 people, I figure approximately 4,268,205 people would say the same; the lone exception being a certain Sue Bradford, for whom “smacking” and “assault” are synonyms.  That’s 4,268,205, I say, not 4,268,093.  The other 112 politicians who voted for the Crimes (Substituted Section 59) Amendment Bill last year are not exceptions.  I bet you anything they would say no too.

This was reiterated by every speaker, by every party that supported that bill in its third reading (except Ms Bradford).  Smacking would not be a crime.  Smacking should not be a crime.  The bill is not about smacking.  It is about the sheer abuse of children that goes on in some places, hidden behind the old Section 59.  This quote of National’s Chester Borrows is not an isolated example:

Those parents who are worried that this legislation will criminalise lightly smacking a child can rest assured that Parliament’s intention is that this should not be the case, and if at some future time they find themselves on such a charge, they should advise counsel to research Hansard and cite these comments in their defence.

Why on earth, then, do Family First and more than 300,000 voters want a referendum that asks about smacking?  A negative response to that question, which is an almost-certainty, would have no effect on the status quo.  It would merely reaffirm the stance of virtually every member of the Parliament that enacted the law.

Family First and its petition’s supporters have yet to realise this.  Perhaps they are in denial: who could have thought a bill that was originally so absurd could end up being an Act of Parliament that actually means something?  I wrote once in this blog in strong opposition to Ms Bradford’s bill, but much changed between then and its final reading.  The amendment I once opposed had four words, not four sections.

A read of Family First’s case studies might feel emotionally provoking at first, but upon closer study they have little substance.  Not one of the cases resulted even in prosecution, let alone conviction; the single case that even touched the courts was dismissed as soon as it got there.  The cases are largely isolated and the only evidence that they might not have happened under previous legislation is that they are largely the result of people’s misconceptions of the law, which were probably gained through media campaigns by Family First themselves, and which will probably be corrected as the new law settles in properly.

I wonder, if the question began, “Should beating violently with whips, belts or sticks…”, if the matter would be so controversial.  It is this question that the legislation, designed to let go of matters “so inconsequential that there is no public interest in proceeding with a prosecution” (read: smacking), was addressing.  That’s why, if you ask me now, “Should the Crimes (Substituted Section 59) Amendment Act 2007 be part of New Zealand law?”, I would say yes, even when my answer to that pointless smacking question remains a clear no.