Smack That

July 28, 2009 17:49

By Susan Smirk

The referendum is upon us! Send out the town criers, let the trumpeters loose in the streets and lock up your children (while being careful not claim the use of reasonable force for any good parental correction). Try as you may to avoid it, over the next month, nervous parents around the country will be biting their nails as 2.8 million Kiwis pick up that paper, put a tick in a box, and post it off to our government. Many of us thought that the ‘anti-smacking’ issue had been laid to rest when Parliament pushed the Section 59 amendment through with startling and controversial speed in 2007, removing the defence of reasonable force for parents accused of abusing their children. But thanks to the charms of the not-so-dead-after-all democracy of this dear nation, we are now re-addressing the issue in the form of a nationwide referendum, which asks us, “Should a smack as part of good parental correction be a criminal offence in New Zealand?”

Referenda in Aotearoa’s history

If you aren’t sure why all this merits so much attention, it might interest you to know that there have only been ten nationwide referendums held in the history of New Zealand politics – ever. Of those, only three were Citizen Initiated Referendums (CIRs), like this one. Referendums can be called at any time, for any issue (except some aspects of the electoral process e.g. term of Parliament), but have been used rather sporadically in Aotearoa because, unlike Australia and Switzerland, we have no constitutional requirement to run them. Government Referenda are usually called on issues where the government itself is split, such as the 1997 referendum on retirement savings, which was held as a condition of the coalition between National and NZ First. Constitutional Referendums are generally used to decide electoral reforms, such as the 1993 referendum that saw us change to the MMP system. A number of groups campaign for more constitutional referendums, such as the Republican movement, who want to put it to poll whether Aotearoa should become a republic.

Citizen Initiated Referendums can be called on any issue, but proponents must gain signatures from ten percent of all registered voters within a twelve-month period in order to submit to Parliament. This number was 285 000 for the creators of the anti-smacking referendum, Larry Baldock (leader of the Kiwi Party), Sheryl Saville (Focus on the Family NZ), and Bob McCoskrie (Family First Director). Their team eventually gathered 390 000 signatures for official scrutiny, with 310 000 found to be valid … You’ve got to wonder how 80 000 people managed to fill out the form wrong! Following this, the Clerk of the House of Representatives had to formally determine the wording of the question. With debate raging over the quality of the current question, our current Clerk Mary Harris has a lot to answer for with this one. Labour tried to avoid making it an election issue (I can definitely see that on a Tui billboard) by not including the referendum with the general election, citing advice from the Chief Electoral Officer that doing so would “inevitably” lead to “voter confusion, congestion in polling places and put at risk the timing of the parliamentary count.” Now it is being run, at much greater expense, mid-term.

CIRs are a contentious issue. Some people hold that they are the best form of direct democracy, while other groups (such as the gay community) worry that they could be used to strip minorities of their legislative rights (cf. California’s Proposition 8). The Royal Commission of the Electoral System (1986) doesn’t advise their use, stating that “in general, initiatives and referendums are blunt and crude devices … [that] blur the lines of accountability and responsibility of Governments.” In fact, Aotearoa, Italy, and Switzerland are the only countries that even allow referenda on a national level. Switzerland actually uses them as a form of “direct democracy” where the result is binding – a system New Zealand First and the Direct Democracy Party are advocating for Aotearoa.

However, as it stands, such referenda in Aotearoa are non-binding - the government is not obliged to act on the results. Sound pointless? Perhaps it is, judging by the government’s stunning record of ignoring every CIR to date. Our first CIR, held in 1995, asked: “Should the number of professional fire-fighters employed full time in the NZ Fire Service be reduced below the number employed in 1st Jan 1995.” It was an unusually worded question for the same reason as the anti-smacking bill – it aimed to elicit a “no” response, and, sure enough, the results for this referendum were 88 percent against. However, the government later refused to let the Firefighter Union use CIR legislation as a tactic in negotiations. The pathetic voter turnout of 27 percent probably didn’t help them there. In 1999, two CIRs were held alongside general elections, with an 85 percent voter turnout. The first of these hoped to bring Parliament down to a reasonable size, reducing it from 120 to 99 members – 81.47 percent of voters agreed, but ten years later we are still struggling with an ever further increased size of 122! The second referendum was “Should there be a reform of our Justice System placing greater emphasis on the needs of victims, providing restitution and compensation for them, and imposing minimum sentences and hard labour for all serious violent offences?” The overwhelmingly strong result was a 92 percent agreement, so it is almost astonishing to note that the Labour government then ignored the vote for minimum sentences and hard labour, and changed the law to allow quicker parole (after one third of sentence rather than two thirds).

To smack, or not to smack

Now, Prime Minister John Key has said that he will only change the ‘anti-smacking’ law if it is found to be not working – and he is “satisfied that the law is working.” Key and Opposition Leader Phil Goff both plan to abstain from voting, and have expressed concerned with the wording of the question. “The question implies that if you vote 'yes' that you are in favour of criminal sanctions being taken against reasonable parents,” Goff has said. “Nobody believes that.”

The referendum question – “Should a smack as part of good parental correction be a criminal offence in New Zealand?” – does not directly address the repeal of Section 59, which will likely make it easier for politicians to ignore or explain away. However, the issues it stirs up around child abuse, child discipline and the now infamous Section 59, have caused great discussion and debate, roaming through politics, law, philosophy, religion, and morality. It is a question that divided the country, not simply amongst itself, but splitting public from Parliament. In 2007, the repeal of Section 59 was supported 113 to 8 in Parliament, despite opinion polls from the time showing that the public opposed it four to one. The law change became a key election issue for many, despite attempts to distance the issue from the election. Many see the law change as the “nail in the coffin” for Labour, while John Key’s nifty manoeuvring to maintain votes saw him credited with brokering the compromise. This ensured that the law specified that police had the right to choose to not prosecute minor offences – although many maintained that police hold this right anyway. The law change came into force on June 22 2007, and a three-month review was undertaken directly afterwards by New Zealand Police. Over that period, they reported a small increase in investigation of “child assaults,” with a total of 111 events, including fifteen “smacking” or “minor acts of physical discipline,” up from 95 in the three months directly prior to the law change, of which thirteen were “smacking” or “minor acts.” Unsurprising, there were no prosecutions during the review period, just references to various social services for “advice only.”

A report released on July 10 gives an update, with statistics from the last six months, which the Police say shows that “the legislation has had minimal impact on police activity.” The number of minor assaults being reported as having jumped by 40 percent since before the law change, going from an average of 32 reports a month to 45. Deputy Police Commissioner Rob Pope was reported in the New Zealand Herald as saying that the increased reporting is due to an increased public awareness, rather than the law change itself. But pro-smacking campaigner Bob McCoskrie told Critic, “The concern is the amount of time that police are using to investigate cases that don’t require any further action. I can’t see the point in having a law that puts people under suspicion or investigation for anything when there obviously isn’t any abuse going on. And I think that we’ve got to take into account that each of these investigations represents families who are being investigated – that has a huge impact on parents.”

Statistics also show that police are prosecuting fewer cases of “smacking,” or “minor acts of physical discipline,’” but more cases of child assault. There has been only one prosecution from 33 reported cases of smacking, and only eleven prosecutions out of 169 reports of “minor acts.” The single smacking prosecution was withdrawn, because the primary witness refused to give evidence. Of the eleven others, three were discharged without conviction, three were sentenced to “supervision,” two left on call to the court, one was given police diversion, and two cases are still pending.

Even so, according the New Zealand Herald, parents are blaming the law change for their children wagging, telling truancy officers that they don’t know how to make their children go to school without smacking as an option. Deborah Morris-Travers, of the YESvote coalition, says “When we were campaigning for the change to Section 59 of the Crimes Act … we also advocated for a public education campaign about the law change and for continued investment in parenting support and education. And the public education hasn’t happened, unfortunately.”

So the law passed in Parliament, the public seemed still to be upset, and in the two years since, each new highly interpretive set of statistics or case studies has added to each side’s arsenal as they continue battling to convince the public that they should/shouldn’t agree with Section 59. It’s YESvote vs. voteNO, and each side has its own websites, supportive organisations, spokespeople, and token celebrities.

The YESvotes: “If it’s not right to hit an adult, how can it be right to hit a child?”
yesvote.org.nz

This coalition is largely the same group who pushed for the amendment to Section 59 in 2007 and boasts the support of a few big names in the NGO/community sector, including Plunket, Barnados, UNICEF, Save the Children, Women’s Refuge, Ririki, EPOCH, and Parent Centre. On their site you can email your MP, get some parenting tips, or download pictures of cute kids. They also display a few Tui Billboards, developed by a group of Nelson teens, to the tune of “A smack in part of good parental correction,” “the question makes sense,” and a few more.

The voteNOs: “Support good parents. Tackle the real causes of child abuse.”
www.voteno.org.nz

The people behind this coalition are those who successfully gathered the over 300 000 votes needed to bring this referendum into being. They are backed first and foremost by conservative advocacy group Family First, as well as the For the Sake of Our Children Trust, FIANS, the Lifesprino – Pasefika Trust, f.a.c.t, the Sensible Sentencing Trust, Unity for Liberty, New Zealand FOCUS on the Family, the Crosspower Ministries Trust, and Familylife NZ. Their website features Simon Barnett explaining the referendum in 90 seconds (they lied, it’s 120 seconds. Just saying), and a number of emotional stories from Kiwi families.

They still sing to the tune of the 2007 debates, but now they are actually competing for your little ink mark to make it to their little square box. Critic interviewed key spokespeople from each side: Deborah Morris-Travers, of the YES Vote Coalition, and Bob McCoskrie, of VoteNO and Family First.

How informed, and how opinionated, do you think the average Kiwi is about this issue?

Deborah Morris-Travers (YESVote): “In some quarters there’s strong sentiment and strong emotion around these issues still, but … the debate two years ago was a lot more heated than this one, I think actually that people are starting to move on, that they are saying ‘well, OK, the law’s been in place for two years, and the sky hasn’t fallen in,’ and all the police statistics show that they are administering the law in a sensible and sensitive way, as are [the] judges.”

Bob McCoskrie (VoteNO): “Some people will have done quite a bit of research and I guess some others will just be relying on what they read occasionally or hear on the news. But I think we can probably assume that most people have an opinion, because we’ve all been kids, we’ve all had parents, we’ve all seen different types of discipline. We’ve experienced it and we’ve used it.”

How does Aotearoa’s Section 59 compare to child discipline laws in other countries?

YESvote: “We are one of 24 countries who have removed a legal defence, and that’s the first important thing that this law does – previously there has been a legal defence for parents or caregivers who were charged with assaulting their children: if they were charged and they went to court, they could claim they had used reasonable force. And that led to the acquittal of some people who had used quite excessive levels of force against children. … Also, about 24 other countries have taken the second step of really outlawing the use of force for the purposes of correction, which is what our law does too, so there’re two steps to it, and there are a number of other countries who have removed their defence equivalent to Section 59 but they haven’t yet gone that second step.”

VoteNO: “My understanding is that our law went a lot further in turns of the law area of ‘reasonable force,’ to the point where even removing a child to time out physically could possibly be caught under the law – that was an interpretation done by a US expert on the law [Dr Robert E. Larzelere], and he says it’s one of the most extreme.”

How likely is it that we will see the law change again if the vote is “No”?

YESVote: “We would still hope politicians will acknowledge what sentiment might be expressed through the public, but it’s important to wait for the formal review of the law, which will show that the law is working well.
“The referendum is non-binding, and to date, the political consensus that saw the law get through government in 2007 has been maintained, and people continue to support the law, understanding that it’s really necessary for children to have the same legal protection as all other systems … And because of the way the question is phrased, I think that actually there won’t be much in the way of a compelling reason for politicians to respond and do anything to amend the law, because the question is quite confused: part of it suggests that hitting children is part of good parenting practice, and secondly it suggests that good parents are being criminalised by the law, when they’re not.”

VoteNO: “I think that even Labour Party commentators have said that the Labour party got, y’know, ‘punished’ for not listening, when the law went through. So I think there are few governments who would ignores the results. Referendums are an important part of democracy and it’s a chance for people to have their say and remember that Parliament is a House of ‘Representatives.’”

Ask the Audience

The student opinion seems just as polarised as the wider public. Aside from the few whose response was “So what’s actually going on?” many viewpoints were so contradictory that it’s hard to believe that they are all reading the same news. Responses ranged from, “It should stay how it is now, because the police say it’s been working and stopping child abuse,” and “I don’t see that the new legislation has been used to prosecute parents who shouldn’t be prosecuted;” to the other extreme of “It hasn’t been working – they’ve been taking it too far and saying that people have been abusing kids when they haven’t,” and “It’s good to avoid the defence that you’re not ‘abusing’ your child, you’re just ‘disciplining’ them, but … it’s not actually right – it’s the enforcing bit that was going wrong, lawyers bullshitting their way out of it, but the law was never wrong, the law was always protecting.”

The average campus-dweller seemed pleased that the public was getting a say: “If it’s pushed so far that you need to call a referendum then there’s obviously controversy and the law shouldn’t have been passed in the first place.”

“I kind of care about the outcome of it because I think Labour was being douches, and Greens were being douches, and everyone was being douches and it’s good that the average person can get their point out there, and that we’re not ignored all the time.”

But a few expressed shock when told the amount that the referendum was costing, commenting, ““#@%*-*#@!”
In fact, this referendum is causing more controversy over the practicalities than the politics. It will cost $8.9 million, and a Research New Zealand survey in June this year showed that of 481 people questioned, 77 percent thought it was a waste of money. Aside from cries of “recession!” making taxpayers less willing to see nearly $9 million of their tax dollars invested in any referendum, serious concerns around the wording of the question are evident. Some call it confusing for attempting to elicit a ‘No’ vote, while YESVote criticises it for the assumptions it contains, implying that a smack is part of “good parenting.” But McCroskie say firmly, “I don’t have a problem with [the wording] at all. I think people that find it confusing simply either don’t like the answer they come to or simply don’t want this referendum to happen so they’re trying to dismiss it … The ironic part is [that some people ask] ‘What is good parental correction?’ yet in the new Section 59 which was passed, they use the term ‘good care and parenting.’”

Time to wait

Despite all the media attention, Morris-Travers tells Critic that “It’s quite likely that the turnout will be low, for a couple of reasons actually – because people have moved on, and because this is the first time we have had a referendum by postal ballot.”

McCroskie says, “There’s no doubt about it that it made a lot more sense to have it at the [2008 general] election, but obviously the government was trying to avoid that. [But] I think that because it’s being posted to people it’s not to difficult to do – it’s pretty easy to tick a box and chuck it back in the envelope, so hopefully there will be a good uptake. I guess that whatever people are going to vote, we should encourage people to enjoy democracy and have their say on this issue … My bottom line is simply that they do vote.”

Just tick the damn box already …

There’s no doubt about it: we don’t suffer from a shortage of information and impassioned opinion being blasted our way from either side. But between this Friday (July 31) and Friday August 21 we get to have our say by postal ballot. You must be enrolled to vote, and make sure you’ve updated your address if you’ve moved since you last enrolled. An estimated 36 000 people are newly eligible to vote since last year’s general election, so if you’ve blown out 18 candles since last year, make sure you enrol to vote by this Thursday (July 30). You can get forms on www.elections.org.nz, from a Post Shop, by free-phoning 0800 367 656, or by free-texting your name and address to 3676. Then you can sit back, watch Aotearoa’s fourth CIR unfold before your eyes, and “enjoy democracy.”

WHAT DOES THE LAW CURRENTLY SAY?

Section 59
Substituted, on 21 June 2007, by section 5 of the Crimes (Substituted Section 59) Amendment Act 2007

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.