By early 2005 section 59’s days were clearly numbered. The campaign to remove it had been going over 25 years, the big family service provision organisations were backing the campaign, as were the big churches, MPs from both National and NZ First had put forward measures to repeal or limit, the government had been running a publicity campaign against physical discipline for a number of years with the intention of repeal once more change in behaviour had occurred, and the judiciary had been gradually limiting the scope of the existing section.Â
The final vote to replace section 59 was won 113 votes to eight. A simple clean story on paper.
The reality was very different, sometime after the 9th of June 2005 the political wheels fell off; section 59 was replaced, but the cost was huge.Â
I could (and will :) write a lot about the social forces, but today this is about the political forces. How and why did the politics become so ugly? I have a handful of theories, I’m sure there are other possibilities:
- It was a Green bill – that made it easier to paint as extremist.Â
- Labour dithered – which made it appear that this was an area of potential weakness
- National  has been building links to conservative Christian churches – for example Brash spoke to a large conservative congregation (with no media present) in July 2005 about “values” and “morals” and pledged National would fight the bill.
- The “Nanny State” meme – it was an incredibly well developed attack theme against the Labour led government, and had been successful against similar governments overseas, and this issue fit perfectly.
- Cynicism – I already noted that a National MP had tried to limit s59 (Bob Simcock way back in 2001) and National voted unanimously for the bill’s third reading. But it proved such a good stick to beat Labour with, perhaps for a while their principles were traded against a chance at the cabinet benches.Â
- Poor communications strategies by both the Greens and Labour – something went badly wrong here, there was no comms, then too much inconsistency, and little co-ordination between the Greens and Labour. [Thanks Danyl for reminding me, I’ve updated this now :]
Anita,
You forgot the media. They played a big role in this one. By constantly describing this bill as the “anti smacking” legislation, they managed to enable ordinary New Zealanders who had never read the proposed amendment to s 59, to actually believe Labour and the Greens were promulgating an Act which would make them criminals for smacking their children on the bottom!
The reality is very different of course, but the damage was done. As you note, revision to s 59 had been on the cards for years at the behest of several parties, but all of the reasons you give plus the media grabbing this one, served to turn it into the political issue it became. I feel really sorry for Sue Bradford who became the whipping boy for the Right as a result and I applaud her for this amendment.
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I am amused to note that the very first comment nicely encapsulates part of the problem – the point of the law change *was* to legally ban corporal punishment of children.
As it says on the website of the Children’s Commissioner: “The use of physical punishment is banned in law – Police discretion does not mean that the law says that physical discipline (hitting and smacking) is ok – in fact the law goes as far as to say that ‘use of force’ for correction is not allowed.
A lot of the people who supported the law change played very coy on this, saying that they wanted to ban child abuse while not admitting that the purpose of the law was to ban all corporal punishment.
This coyness meant that a lot of the debates about the bill couldn’t even get going, because the people debating couldn’t even agree exactly what they were debating about.
And in a separate point:
If you want to persuade someone that their time-hallowed tradition of smacking their children when they are bad is wrong – calling them a child beater or child abuser isn’t going to go so well.
Elizabeth – I agree the term was ill-advised, but I thought it was initially used by Sue Bradford herself?
“I am amused to note that the very first comment nicely encapsulates part of the problem – the point of the law change *was* to legally ban corporal punishment of children.”
A bit misleading. Corporal punishment isn’t the same as smacking a child (or more properly physical force against a child). The Act sets out the grounds where physical force against a child is legal, hardly anti-smacking then. Admittedly it does limit those grounds compared to the previous situation, but explicitly provides for physical force against children, and then provides for discretion in other circumstances.
I’m not sure, I stand to be corrected then.
Exactly. I posted the text of the new s 59 in another post yesterday. Happy to do so again. Read it for yourselves:
[59Parental 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 Thomas has pointed out is true and that means the issue was greater than smacking/anti-smacking. It was about honesty in politics.
The Greens and Labour backed a bill to ban smacking, but told everyone it was not an “Anti-Smacking Bill”. They continued to maintain this lie all the way through the parliamentary debate even after lobbyists, the Nats and the press had totally exposed it. The electorate does not like politicians who lie to the electorate. Labour/Greens lied, were caught and continued to lie. The Nats were able to make political capital by calling it an anti-smacking bill and letting Labour/Greens dig themselves a little deeper by repeating their lies.
In the end the Nats voted to ban smacking and were rewarded with a boost in the polls, which suggests that had Labour/Greens actually told the truth about the nature of the bill they would have sufferred no damage.
unaha-closp,
I meet plenty of people who tell me they voted National because National voted against the anti-smacking bill. I meet others who say that National changed the bill to keep smacking legal.
I think if you talk to people who opposed smacking, and look at the polling at the time you’ll find that National’s support for a ban on corrective smacking was not well publicised and was not the key to their success.
See? Here we are disagreeing about what the law says and what it means.
Smacking does come under corporal punishment – it’s the use of pain to punish (the law uses the term “correction” but it’s the same). What else could smacking be?
I read the amended section 59 and I see a complete legal ban of physical punishment such as smacking with a little sidenote saying that the police can choose not to prosecute. Of course, the police already have the power to choose not to prosecute other offences so it’s kind of a meaningless addendum.
I note that using physical force to restrain a child does not count as corporal punishment or correction but I don’t think anyone seriously argued that parents shouldn’t be able to grab/restrain their child to prevent harm coming to them.
So, the law explicitly bans smacking your child in order to punish it. I beleive this is the only possible interpretation, and it is the same conclusion that the Children’s Commissioner draws in the piece I quoted earlier.
This brings us to the point that the term “anti-smacking law” might be ill-advised – but I believe it’s an accurate description of the purpose of the law and I struggle to understand any other interpretation.
That there are other interpretations all of which have their supporters is, I believe, the chief cause of the political problems around passing the bill. People kept arguing past each other as they all saw something different.
Then, of course as Anna kind of notes, there were the wider social problems of passing a law designed to change parental behaviour without first achieving consensus among the populace (as she notes, the political elites had done so) on the need for the change.
Elizabeth & BeShakey,
The Greens called in an anti-smacking bill way back in 2003. They changed the language as they found it worked against them (possibly influenced by the experience overseas in talking about similar measures).
Thomas Beagle,
The law explicitly bans all force against others (and always did), there is no longer explicit protection for parents who use force to punish.
Section 59 was always weird, it was a legal defence, not a statement of legality.
While I agree with the section 59 bill, and supported it wholehartedly, I think the ultamite price we paid for it was the election of this National government. Labour was actually doing OK in the polls until this bill.
So called “middle new zealand” can be quite nasty at times, and this bill brought out the nastiness in a lot of people (on both sides – I have to confess I abused a woman who tried to get me to sign a petition against the bill).
This bill would have been better off as a ‘Nixon in China’ inititive, being passed by a National government (as would have been in 2001).
Helen Clark showed a bit of weakness in this bill….no matter what you say about here, she could read the electorate, she could have quite easily not supported the bill, and let it die…
But, I guess human progress has a price.
There are indeed other possibilities:
1. Parents resented being told they’re bringing their children up wrong – especially by hippies.
2. Parents didn’t much appreciate childless yoof activists referring to them as child-beaters.
3. The whole mess was about relitigating a few jury decisions because some politicians disagreed with them. I can’t be the only one who looks on that as not what I pay them for.
All of the above assisted no end in making it ugly, but Danyl’s point about Labour and the Green’s messages constantly contradicting each other is probably the most significant. Like Unaha-Closp, I suspect dishonesty rather than incompetence behind it.
I believe (not being a lawyer and all that) that the bit taken out of section 59 was a statutory defence and that this does mean that the behaviour covered by the statutory defence is explicitly legal.
Of course, at this point it’s just hair splitting. It was widely understood that “reasonable force” included smacking children for the purpose of punishment. I also submit that it was widely understood that “reasonable force” wouldn’t include what I would describe as beating or physical abuse, but I believe there was at least one case where the judge got this ‘wrong’ (and wasn’t that what kicked the whole thing off again?)
BTW, before anyone starts making unwarranted assumptions, I don’t actually have a strong opinion on the use of physical punishment for children. On the other hand, I’ve found the issues around the debate quite fascinating for exactly the sort of reasons that Anita brought up (sorry about the Anna/Anita mistake earlier too!).
Psycho Milt,
Having recently read a lot of the rhetoric at the time I’m not sure that happened very much at all.
I have seen a lot of anti-repeal media releases and commentary saying that pro-repeal people had said that, but the quotes had been selectively chosen and heavily spun.
It may have happened once or twice, but my impression was that all the main pro-repeal players made only very temperate carefully crafted statements.
Psycho Milt,
Do you think it is OK for a parent to hit their child with jug cords, bits of wood, and rubber hoses, because that is what parent used to get off charges of assault…
Or more to the point, it is morally accepable?
Another interesting post (and comment thread) Anita, big ups! One of the elements that frustrated me most about the debate was the idea that if you hadn’t breed you weren’t entitled to an opinion. I suspect this would not have been used as much if we had not had a female PM who didn’t have kids.
You’d have to search pretty hard, under every rock in the land, to find people who didn’t have an interest in child safety (whatever that means to individuals). So it was a totally false dichotomy.
Anita,
I agree their position on the bill was nearly meaningless, it was the honesty they exhibited during the process (compared to Labour/Greens) which was telling. They addressed the issue of banning smacking honestly and opposed the 1st & 2nd readings of the bill as being too broad. The Greens/Labour supported the 1st & 2nd readings and said the bill was not broad and would not ban smacking – a lie. The Nats then arranged a compromise with Labour to narrow the range for prosecution for the 3rd reading and agreed to the compromise.
Politics is about trust, politicians who appear honest have an advantage over those who are caught lying.
Bad move.
Millsy: what I think of those cases is hardly relevant – what counts is what the respective juries thought of them. There’s little point in a govt expecting the citizenry to carry out jury service if it carries the unspoken proviso “as long as you reach a decision we’re happy with.”
Anita: my experiences of being characterised as a child-beater are all blog-related – nevertheless, blogs are part of political discourse, as evidenced here.
The stats suggested that the main two groups who were overrepresented in support for maintaining S59 were couples without children and those 65+. There were probably some advocates without children who got involved, but the Pakeha middle classes don’t seem to have a problem wading into Maori issues, so it seems a bit rich to get upset when others wade into issues affecting them.
Then you’ve misread it. The section explicitly sets out the grounds in which physical force may be used against children.
I’d go for the third possibility, that the Greens and Labour were working to their different constituencies. The Greens constituency liked the anti-smacking rhetoric (which I’d describe as chest thumping rather than dishonesty), while Labour needed to reassure the middle. They ended up contradicting each other and looking stupid. It would have been interesting to see if it scared Labour off working from the Greens more in a fourth term.
“Then you’ve misread it. The section explicitly sets out the grounds in which physical force may be used against children.”
Yes, but I was talking about physical punishment, not force. The debate was never about whether it was acceptable for parents to physically restrain their child for their own safety, it was about whether parents were allowed to physically punish/correct them.
If you don’t agree with that, how about explaining your disagreement rather than just stating a bald contradiction. (Please be careful to differentiate between punishment and other force, just as the law does.)
Top marks for weaseling your way out of my question, so I will try a diferent tack.
Are you comfortable with the idea that a jury can rule a parent beating his daughter with a length of industrial rubber hose pipe as reasonable force?
BeShakey,
No we haven’t. It justifies preventing through physical force a child from harmful, offensive and criminal behaviour. Restraining them, confining them, but not hitting.
How you can think the law justifies hitting a child is beyond me.
I’m so with you. We’re not justified in hitting another adult unless it be in self defence or because we were provoked. We’re not justified in hitting an animal.
Yet these people think we ought to be justified in hitting a child in other than the circumstances set out in s 59???!
It’s beyond me too. I just shake my head….
I’ve never raised a hand to my children and never will.
I was physically disciplined myself as a child however and I KNOW it did me harm.
I’m with the Children’s Commissioner on this one. Sorry Beagle.
If being unwilling to pronounce judgement on cases you know nothing about is “weaseling,” I can only wish NZ had more such “weasels.”
On the other hand, it’s a teachable moment so what the hell: no I don’t believe people should be free to beat their children with whatever implement comes to hand, instead I think they should be arrested and charged with assault. And in the cases you refer to, under the old law, that’s exactly what happened. You and the Greens bitch about the verdicts that the juries in these few particular cases reached, and seem to have come to the conclusion that a successful way around the “problem” of juries occasionally delivering verdicts you disagree with is to simply remove the decision-making from the juries. Recognising that approach as stupid does not imply any enthusiasm for child-beating on my part.
I think that comment was directed at me, and I’m supportive of the change. I was just arguing that it doesn’t simply ban smacking (I prefer to use ‘physical force’ because its more generic, covering the full gamut (as the law does), rather than focussing on the specific example of smacking).
Previously the law (through S59) had provided an exception to the general prohibition on physical force against another person, the change to the Act simply changed the exception. Admittedly the exception to the general law is now more narrow than it was before, but it is still there.
Thomas – whether parents are allowed to physically punish their children will depend on whether that punishment is covered by S59(1)(a), (b), (c) or (d). My point was simply that it is possible under the Act to smack (or otherwise use physical force against a child), if it falls within those clauses. As such it isn’t an ‘anti-smacking’ Act (insofar as that means all smacking is banned).
To clear things up:
Prior to the amendment of section 59 smacking one’s child for the purpose of correction was legal. After the amendment, it is not.
It was legal because there was a defence. That is how defences work. There is a general rule in the law, and the defences provide expceptions. Those exceptions do not mean that the behaviour was illegal, but cannot be punished, they mean the behaviour is legal.
It is not correct to claim that having sex is illegal, there is just a defence of consent that means some people who have sex “get away with it”.
Consensual sex is not illegal. Reasonable corrective smacking was not illegal. It now is.
The reason that proponents of this change had a hard time with the debate is that they spent a large amount of their time and energy pretending they were debating something they weren’t. They were proposing or supporting a law that would make something then legal (smacking) illegal. If they wanted to lead the debate they had a couple of good options I can think of:
1. Argue why smacking should be changed from legal to illegal.
2. Propose a different change which did not change the legal status of smacking.
Many had reasons for not doing the latter (e.g. it might legitimise some violence against children or they believed in the former), but they chose not to go with the former. This forced them to defend a change in the legal staus of smacking – from perfectly legal, to entirely illegal – by arguing they weren’t doing what everyone could see they were doing. The argument became about what they were doing, instead of whether it was a good idea.
If they’d come out with an argument like:
*many parents smack, and most of them fell guilty about it afterward, we think there is a better way. The vast majority of these parents are loving wonderful parents.
*However, there are some parents who take this too far. We know this isn’t most parents. Not even close. But we need to do something for the kids of these parents. If we ban all smacking these parents will know they can’t hit their kids, they’ll have no excuse when they take it too far, and the community will be able to help ensure their kids are safe and well-cared for.
*Yes, it means all those good loving parents won’t be able to smack either, but they know there’s a better way, and if removing the right to smack from them is a way we can make the lives of those whose parents aren’t like this better (and stop not just abuse, but maybe even some deaths) then it will be worth it.
*Most parents who occassionally smack, have children who know they are loved. Their lives won’t change all that much under a law where smacking is illegal. This law is about those children whose lives are blighted by physical violence, as long as any level of force is okay, these children will not be safe. We need everyone in the community to understand that children are unbeatable, and this is the only way.
Instead we got:
*We’re not banning smacking.
*We already banned smacking years ago, and are now just removing a defence.
*We’re banning smacking because children should have the same protections as adults.
*All smacking is violent.
*People who oppose this law (even those who oppose smacking, just don’t think it should be criminal) are/support child abusers
*Smacking won’t be illegal, but the police won’t prosecute.
*Smacking may be illegal, but the police won’t prosecute.
etc.
There are many good reasons to ban smacking, supporters of the law change didn’t seem to want to advance any of them. We got the dregs, and it showed.
Two points – I think most people think a conviction is a key part to the process, its hard to see why you would think an arrest and charge is appropriate on the assumption that a conviction isn’t obtained.
It’s also hard to see why you think changing a law is wrong. Laws are frequently changed, sometimes, as in this case (arguably), because the emerging case law showed that the intent of the law wasn’t the same as the reality. Alternatively, laws are changed because society no longer supports the intent of the law (eg prostitution and homosexuality law reforms). Lots of people would argue that the S59 change falls under one of those categories. Why is changing a law for those reasons ‘stupid’?
It might not be, but we didn’t change the law for those reasons.
Do you really think that we banned smacking and all other forms of physical correct because society no longer thinks it should be legal?
Even supporters of a ban on smacking didn’t think they had popular opinion on their side.
What’s hard about the concept that someone may be arrested and charged with an offence, but not necessarily convicted of that offence once the jury’s heard all the evidence? It happens all the time.
I think it’s wrong, and also stupid, to strip juries of the power to decide guilt or innocence simply because juries returned a verdict you disagree with in a small minority of cases. According to Sue Bradford, that’s what the whole thing was about.
Whether or not that is what the whole thing was about (and personally I don’t believe it was), when we are dealing with CHILDREN, I don’t consider that a de minimis approach is justified. One not guilty verdict in one of these cases is one too many in my book. In the case I was involved with some years ago, the boy was beaten with a wooden stick studded with nails and the parents were acquitted. Disgusting. One case too many and thank God for the amendment then.
Psycho Milt writes,
Um… juries make decisions based on the law as it stands. When parliament changes the law it changes the basis on which the juries make their decisions – thus was it ever so.
Bradford wanted to change the law so that the decisions juries made would be based on the new law. Juries will still decide guilt or innocence.
I see parallels to the debates of 2007.
Critics of the bill would point out specifics of what the bill actually does – Labour/Greens would side-step using widely generic terms and the Nats would answer directly. End result 10% swing to National.
Graeme,
I don’t quite agree. I think if you were to read the arguments put forward by the lead campaigners for the repeal (e.g. EPOCH, Sue Bradford) you would find detailed “good reasons” with explained and laid out. If you read what is in the media, however, much of that never made it, or was drowned out by other arguments.
One of the things that struck me about the section 59 debate was just how effective the anti-repeal campaign was at saying “pro-repeal say X!!” and getting that accepted by the media. It must have infuriated pro-repeal organisations to so often hear media analysis which described arguments that they had never made, and missed the arguments that the did make.
Back to my point 5 – the political pro-repeal campaigns lost the comms battle by a huge margin.
Really? I think Elizabeth provided an excellent illustration of my point in the comment immediately above yours:
A better summing up of Bradford’s motivation isn’t likely to be achieved.
Anita,
Suggest looking at another great pre-election swing away from Labour.
Light bulbs.
Light bulbs hurt Labour for the same reason s59 reform did. Labour prepared standards that would ban incandescent light bulbs and then tied themselves in knots saying that it wasn’t a ban (think the preferred term was efficiency standards).
Pyscho Milt,
Let me try a different example.
It used to be that juries, working off the law at the time, would find someone not guilty of rape because the person raped was so drunk they could not say “no” (and could not say “yes” either). That is someone would have sex with a person they knew was too drunk to say “yes” or “no” and juries would have to find them not guilty because of the way the law was written.
So one day parliament changed the law, perhaps saying “one not guilty verdict in one of these cases is one too many, because it shows that the law is written wrong and achieving the wrong outcomes”.
Nowadays a jury faced with the same case will return a guilty verdict because the law now explicitly says
Do you think it was “wrong” and “stupid” to change the law so that juries would now be able to find someone guilty of rape when they knowingly had sex with someone who was so drunk they were unable to consent or refuse consent (or were even unconscious)?
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So what? What’s your point? As Anita pointed out, juries used to find people not guilty of rape on the most tenuous of grounds. Result? Society no longer tolerated that and the law was changed.
Similar examples can be given in many areas of the law, criminal and civil.
I don’t see why that is a ground for criticism of Sue Bradford’s motivation (without presuming to know of course whether it was her motivation).
The point of MY comment was that in my opinion, one not guilty verdict based on this defence WHEN IT IS A CHILD involved is one not guilty verdict too many. I don’t agree with physical discipline of children. That’s my opinion and that’s why I am glad section 59 was amended.
Not quite. A statuory defence permits acquittal. It does not make the behaviour legal. Just as the statutory defence of provocation does not make murder legal, so s59 did not make assault on children legal. In effect, a statutory defence (if proved) allows the statement: yes, you comitted an illegal act but because the circumstances fall within the boundary of a legislated exception, there shall be no sanction.
Blip
Agreed. Doesn’t make the behaviour legal. Same with self-defence to murder. Provides a defence to the offence of murder but doesn’t mean the murder becomes “legal”
Politically independent pro-repeal groups appear to have got everything they wanted. The bill signed into law through an effective compromise being reached. They won over the Nats and got Key to publically step into the limelight (sharing a podium with Clark) to back the repeal. The Nats will not reinstate s59.
Even the Greens were able to come through the process looking okay. They confirmed themselves as very left wing focused on social well-being (whilst perhaps ambivalent about the enviroment they appear to be deeply committed to socialism which is good in the eyes of socialists). Sue Bradford came out positively glowing in Green supporter terms.
The only loser seems to have been Labour.
Thanks for the explanation of a statutory defence.
On the other hand, it doesn’t really change much. The Police generally don’t bother bringing prosecutions in those cases.
Elizabeth said:
Absolutely. In fact, so far as s59 worked, the accused must concede that an illegal act took place BEFORE the defence comes into effect.
We’re probably splitting hairs but, I suspect, part of the murk in relation to s59 is because most people did not understand the law, let alone this specific section and its ability to deny children the same legal protection we give to dogs.
Of course not. However, that law change was about defining a crime more carefully to remove a loophole – a good thing to do, and if that’s what Bradford’s S59 repeal had been about I would have supported it. But it wasn’t. Contrary to defining a crime more carefully, her approach was to define it so broadly that perfectly ordinary parents are now criminals.
Actually, it was a quite successful deployment of an old PR strategy.
By highlighting the shocking malevolence of a law that permits such acts made the villagers pause and wonder, “what’s that all about?”. The growing public awareness and desire for “something to be done” at that time was quickly realised by the politicians – some attempted to capitalise on the situation and, if you think The Greens are fringe, you should read some of the Christian Party speeches! Most MPs, however, knew which way the wind was blowing, and, probably, thought it was a good idea themselves.
Perhaps you thought the “relitigation” was a bit laboured and pointless; the level of discussion about the law at that time certainly belonged in a Kangaroo Court. Yet the media’s inane repeated listing of the injuries sustained and weapons used against those children, as permitted by s59, had an emotional effect that resulted in more people feeling more positive about the repeal.
The repeal of s59 wasn’t about getting around dodgy jury verdicts. It was about bringing up our children without violence. Object all you like to the machinations of changing a law and the politics involved, but the “the law is an ass” strategy is far from stupid.
Rubbish. Where and when?
Milt, “perfectly ordinary parents” aren’t criminals until a court says so. Laws don’t criminalise people, courts do that.
The law also says that sellers of booze aren’t allowed to serve intoxicated people, and yet they all do so every day in every bar around the country. That’s why police have discretion.
Technical assaults happen all the time, but are not charged. So are we all criminals then?
This is one thing that annoyed me about the debate around the anti-smacking debate. Before it, it was widely understood that having a defence meant you didn’t break the law. So intent upon trying to win the argument, proponents of the law change tried to turn centuries of universally-accepted legal thinking on its head.
Having a defence means you have not broken the law!
It has always meant that, just because the smacking debate came around will not change this, even if it helped in the argument at the time.
In answer to your specific analogy:
Of course it doesn’t. If the (partial) defence of provocation applies in a circumstance, it means that circumstance is not murder. It is of course still illegal (manslaughter), because provocation is a partial defence.
Assault is defined in the Crimes Act. A smack is an assault. Some assaults are legal. Some are not.
A tackle in a rugby game is an assault. But it is legal because there is implied consent. Consent is a defence to an assault charge. If you have consent (or implied consent) although you may have assaulted someone, you have not illegally assaulted them, as your assault of them was in accordance with the law (legal) not contrary to it (illegal). A smack as part of reasonable correction is analogous. It has always been an assault, but it was not illegal, and it now is.
Have a look at some of the other defences in the law, and you might realise how odd the claim is that someone has acted illegally in circumstances where they have a defence. Section 61 of the Crimes Act creates a defence for those engaged in surgery:
It is correct to say that every time surgeons cut someone with a scalpel they have assaulted them; it is not correct to say that have behaved illegally.
And that is what you are claiming. You are asserting that a surgeon who removes someone’s tonsils has broken the law, but because of a defence in the law, won’t be sanctioned. This is NOT the case. Surgeons do not break the law (that is, behave illegally) every time they conduct a surgery.
Psycho Milt,
Another example… :)
If one looks at the stats one could argue that when NZ introduced domestic violence legislation we criminalised “perfectly ordinary” people. Does that mean which should not have changed the law?
IMHO it’s not the juries, and it’s not the “ordinary”ness. It’s whether we believe it is ok for NZ parents to use physical discipline on their children. If we do it should be legal, if we don’t it should be illegal.
Graeme,
Oooh oooh oooh :) <--- I'm all excited about learning a New Thing :) I had always thought (perhaps my poor reading of the Crimes Act, perhaps my reading about other jurisdictions) that consent did not make an assault not an illegal assault. I had thought that it was the Police exercising their considerable (and reasonable) discretion that meant they did not charge when there was assault.
Sorry, that sounded way snarkier than it was supposed to. It gets my point across, but perhaps could have been phrased a little better. I’ll try to keep my responses to the other points a little closer to the point.
Quite right. It means it is not murder.
No. One would have to concede an assault took place. This is not the same thing.
I suspect you’re right about people not understanding the law – why I even saw the prime minister, our head law-maker, on television proclaiming that smacking children was already illegal!
(I can be a little snarky, perhaps? :-) ).
I suspect you are a little mis-informed about the protections we afford dogs, however. For a start, we can have dogs euthanised, also, although it may be mean or stupid to smack a dog doing so does not rise to the level of cruelty, or ill-treatment. It really really isn’t illegal (under either of our analyses of the meaning of illegal).
Anita – the defence of consent isn’t specifially raised in the Crimes Act, which might be you missed it, but it does exist (arising from caselaw).
The existence of section 63 of the Crimes Act should give some proof that consent must be recognised in some circumstances:
This section is needed, because otherwise some people might think the defence of consent extended even to consent to death. It is an actual instance of the “exception proving the rule” – you wouldn’t need this exception if consent was never a defence.
The defence of consent has been judicially narrowed in other circumstances. There is a reasonably famous case that I think they try to use to shock law students involving quite extreme S&M practices; in it the English courts declared that consent was not a defence to grievous bodily harm (their equivalent of our “wounding” – the most serious assault-related charge we have short of manslaughter). I suspect this case may no longer hold (a subsequent case that involved hetero S&M came to a different result).
You can of course get a tattoo, but if someone were to tattoo you without your consent, I imagine they’d be in a fair amount of trouble!
Graeme,
If I got a tattoo (consenting to it and paying for it), and the tattooist did what I asked but had a major reasonably predictable mechanical or hygene failure (or something, this hypothetical is stretching, I hope you can bend reality for me :) which injured me. That is, by doing what I consented to but by taking unreasonably poor care they injured me could they be charged with assault?
I promise (faithfully :) to get back onto section 59 :)
P.S. Thanks for explaining about consent, I had always been curious.
Graeme, in theory, would a head high tackle in a game of rugby be criminal assault? IOW is the implied consent only to the assaults that are inside the rules of the game.
PB,
Here is an Australian example of a player charged with an on the field punch.
Pascal’s Bookie: the existence of other poorly-thought-out laws that aren’t enforced isn’t a good reason to create more.
There’s Danyl’s point perfectly illustrated: at times it seems the repeal of S59 was about preventing people being aquitted for egregious child abuse, at others it was about “whether we believe it is ok for NZ parents to use physical discipline on their children.” I still can’t decide whether this reflects confusion or just blunt dishonesty.
I suppose it’s possible but it could get messy, questions around intent (required for a criminal assualt conviction) might get in the way.
A more likely criminal charge for your injury (other than under health and safety legislation, which seems by far the most likely) would probably be injuring by unlawful act under section 190 of the Crimes Act. This offence can be committed negligently (which your scenario seems to turn on). The failure to follow H&S requirements (phrased as something like “take all reasonable steps to ensure the safety of staff and customers”) would be the illegal act, and that action resulted in an injury to you.
Possibly. However, this would likely also turn on intent.
The consent you impliedly give when you run onto the rugby field is more than just consent to be tackled. You’re also consenting to the risk that someone might misjudge something or have their arm slip up. These things happen in rugby, and you knowingly run the risk.
A truly malicious head-high tackle? Yes. Charges have in the past been laid over such behaviour.
millsy,
The period of the debate over the bill was mid 2005 to mid 2007 – it covered an election which Labour won.
I think you’re right that the point at which the reaction against the bill built is about the same point that the swing against Labour really started to kick in. But I’m not sure about the cause-and-effect.
My kinda theory at the moment is about a circle in which the “Nanny state” meme is built up by the right, it clicks with the small movement against the bill, they reinforce the meme, the strengthened meme strengthens the movement, it gets bigger and noisier and so on.
The meme damaged Labour and strengthened the opposition to the bill, and the opposition strengthened the meme. So, where did the meme come from?
There are other provisions in the Crimes Act which would be more likely in this scenario…
Thanks. It seems to me then that it is like the s59 issue. The law is broad, and there are woolly areas around certain applications that we give the police discretion. And that this is not a poorly thought out bug, but an sensible feature.
The law relies on words. Reasonable people can differ about what words might mean. Reasonable people differ less though, about what things ought to be banned. Defining those things into specific words (like ‘smack’ or ‘intoxicated’) has proven to be problematic. There will always be cases that perversely fall outside of any strict wording, one way or the other.
The worry of course is that the police will misuse their discretion, and charge people who arguably commit a technical offense that the law is not intended to cover. (Like the poorly defined ‘loving light smack’, or the negligent head high tackle.) But that doesn’t seem to happen on a large scale, here at least. It would be damaging to the institution of the police, and it would become a political issue. Jury nullification would come into play and the police know it.
I think the system works.
To be fair, whilst there was some debate prior to the 2005 election about the amendment to section 59, Labour was able to extricate itself from any electoral consequences with this statement from the Prime Minister:
With that, everyone knew prior to the 2005 election that Labour wouldn’t support Bradford’s moves to completely ban smacking – and perhaps assumed that the most Labour would do would be to support a Chester Borrows-style amendment.
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If any of your are teachers (primary especially) you will have come to realise the hopeless situation schools are in especially at under decile 5. Thjere is essentially no discipline. The kids cant be touched and they know it,. Teachers spend their time making sure thschool is locked and they try to keep gangs apart.
I know of one situation where a 9 year old got hold of a key and wanted $50 to return it. Any attempt to call the police (the kid said) would result in the key ‘becoming lost’. The head knew that to replace the lock (and get it aligned with the master key) would cost well over $300. The school is cash strapped. So he gives the kid $50.
That kid is going to spend his life in prison. His )solo parent) mother doesnt care “Its the school sfault that hes like this”
What he really needs is a serioulsy swift kick in the backside – or a few whacks with the cane – but no – we are going to condemn him to life in prison.
Thats what repealling section 59 and removing the right for “parents and parents in loco” to physically disciplinekids.
I went to school with plenty of kids who but for physical punishment would have gone to prison.
barry,
Corporal punishment in schools (state and private) was banned in 1990 and earlier in child care institutions (1985).
A recent government study in the UK has revelaed that by age 3 you are either going to make it or you are buggered for life.
After all the years of the government over there (its labour) pouring zillions into school level efforts they have just realised that its all been for nothing.
School is too late. Parents need to ‘parent’ their children very early on.
Theyve got to read to them and talk to them and feed them properly.
Insane programmes like the greens antui smacking bill do nothing for any change. Its too late when they grow up (and as we all know the bill will never stop the abuse of the really young).
We need some serious intelligence applied to this area. Stuff like the anti smaking bill are just a total waste of time. We have to have better parents and dual parents. mothers need to be at home parenting – not trying to scrabble together a few schillings so they can pay the child care. Its this thinking that they have to be working and the solo parent thing that leads to frustration and eventually abuse.
The abuse would never happen if they were proper parents.
Dear oh dear. Why mothers and not fathers? I am a solo mother and I have no problems with my children and I’ve never raised a hand to them. Ditto Sue Bradford from what I understand. Proper parenting has nothing to do with mothers working and two parent households.
barry,
barry, you do realise that your two posts directly contradict each other right?
If the kids are ‘buggered’ by age of three then corporal punishment in school won’t fix em, despite your earlier claiming that it worked a treat for some kids in your class when you were a lad.
When I was a lad, there were a bunch of kids that got licked a lot, much more often than the rest of us. Funnily enough, some of them ended up in jail. One of them was a mate of mine, and his parents thought that physical punishment was the bees knees too. Turns out they were wrong. Didn’t work. He went to jail.
Was it because of the kicks in the *rse and canings? I don’t know. But my anecdotes are as good as yours.
What I am saying is that the headlong rush into solo parenting that we have seen in the last 20 years (ask any primary school teacher where there troublesome kids come from – solo parents) and the erroneous thinking about the anti smaking bill are all wrong. Im not saying smacking is the way to go – what Im saying is that thinking that removinng section 59 will solve anything is plain stupid.
Closing the gaps at school or later is just as stupid (as this new UK study shows). And throwing money at solo parents who just dont have the time or brains to help their kids is also stupid.
Sure there are exceptions by dedicated solo parents who know the importance of parenting kids – but just like biofuels is proving to be absolutely crazy (one study recently found that some biofuels are taking as much as the equivalent of more than a litre of oil to product one litre of biofuel!), thinking that you can fix these kids when they get in front of the teacher, and that its “societies” problem is also a waste of time – and a terrible experiment forced onto the kids.
Parents actually dont have the right to experiment on their kids – they have aduty to do whats has proven correct in the past.
To be fair, the kids who are in detention daily now, or are being frequently suspended or stood down are probably more likely than not to end up in jail too…
Maybe so Graeme. Or rather they are more likely than other kids to end up in jail. But I wasn’t actually saying otherwise was I? To be fair? ;)
The point I was attempting to make, and obviously failed, was that this:
is at best, unknowable, but most likely nonsense. Do you disagree?
natch. Blockquote should be up until the last line.
Yeah. How on Earth could I balls that up so much? Thanks for picking it up.
Youch! Having my sophistry untangled, sliced, diced, sauteed with a thousand split hairs and served up by a semantic gynmast I shall take my humble pie and shuffle off.
I would say, however, if you were to beat a dog with a studded belt outside the SPCA you’d have a hard time getting off a charge of cruelty. Also, you’d have a hard time finding a responsible dog owner who’d tell you that violence is the best way to teach the animal new tricks.
Snarky? Brutal, more like. ; )
Have a read of this item. Its one of the recent reports in the UK about the problems of poverty and parenting and the fact that trying to fix the problems at schools is too late.
http://image.guardian.co.uk/sys-files/Society/documents/2007/06/11/MCS2.pdf
Ive also been reading a book called “where have all the liberals gone”. Essentially about why black USA is in such a horrible mess.
Just one interesting tit bit.
Kids whose parents gave unusual names to are several points behind in the IQ scale. Some of our sillier examples in NZ are names like Tuesday or Stormy.
Its only a few IQ ponts behind, but still significant.
Why is this? well its because other members of society recognise the unusual name for what it is (unusual) and they avoid talking to this person. Teachers avoid clasroom contact and prefer to ask questions of kids with more normal names.
The implication is that – as parents – we cant smack our kids, but we can give them weird names which will impact on them for the rest of their lives.
Another study underway is regarding violence. Why is it that as more and more corporal punishment is outlawed (in some countries now over 50 years) those same societies have become more violent in the interaction between members of the society – and some of the violence becoming equivalent to what was seen in europe during WWII – ie: almost gratuitous.
I don’t know. Why is it that the same countries that haven’t banned corporal punishment have become more violent? Corporal punishment by parents is legal in every state in the US, and legal in schools in a large number of states too, yet the US is now a vastly more violent place than it was 50 years ago.
Could it just be that everywhere is getting more violent, and the use of corporal punishment or not doesn’t really have much to do with it?
Regarding the first, a quick look at homicide statistics shows no correlation with the countries that have banned corporal punishment. In fact, of those 23 countries, many are some of the most peaceful on earth.
Regarding the second, the statistics I have (which admittedly only go back 47 years) show that the United States is not “vastly more violent”. Murder rates per 100,000 are very near where they were in 1960, and most other crimes against bodies are where they were in the late 1960s. This is despite the uncertainty of reporting rates, which affect all crimes except murder very significantly. I know that many fights and assaults in my grandfathers time were never reported.
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George:
1. I chose 50 years for a very good reason. I realise they were rising for some time from near the end of the 60s before peaking in 90s.
2. Your stats show the most violent year the most violent year in the 60s had 328 violent crimes per 100k. The least violent of the last 10 years had 463 per 100k. I think this is significant.
3. I was thinking about violent crime generally, not just murder: robberies, muggings etc. are way up over the last 50 years.
I realise that you have reporting and classification differences, but I also suspect that many of these crimes today would be murders but for the increase of quality emergency and healthcare. People who were stabbed in the 1960s were a whole lot more likely to die than someone stabbed today. (but don’t ask for statistics for this, please :-) )
Graeme,
I wonder if it’s possible to argue that the lethalness of weapons has increased at about the same rate as emergency healthcare.
So some people who would have been punched then are now stabbed, and people who would have been stabbed then are now shot, and people who would have been shot then are now shot with more lethal ammo and/or automatic weapons.
Somehow this reminds me of the Dean Wickliffe case where I seem to remember he was initially convicted of murder at the time (1972?) for action that nowadays would only warrant a manslaughter charge because carrying a gun into a robbery was so rare then that it was considered intent to kill (or recklessness?). Even when his conviction was reduced to manslaughter the sentence remained life in prison.
To drag this back to s59 (for only a moment I suspect :) I think that exactly the same kind of gradual change in the public perception of “normal” is what the pro-repeal lobby want (although in reverse). So what was being excused under s59 had been gradually reduced as the public perception of “reasonable” became gradually narrower, then the exclusion was leapfrogged over (and beyond) the current public consensus so that it would support the continued drift of opinion toward less and less acceptance of physical punishment of children.
Isn’t that always the way of legislation and public change because public change is gradual and legislative change is not? For a while the public move ahead of the legislation, then a single change leapfrogs the legislation past them, then the public continue their gradual change and eventually catch up with (and drift past) the legislation.
Back
Quite right. Back to Criminal Law :-)
Afraid not. Killing someone with a gun during a robbery will be murder now too (under what is sometimes known by the American term “felony murder”). Even if the robber didn’t want them to die.
[see section 168 of the Crimes Act]
Our rule isn’t as broad as felony murder in the states, but if you intend a greivous bodily harm in the course of one of a specified number of serious crimes and your actions result in death, the usual requirement that you need to have been reckless about the result doesn’t apply.
Standard rule for murder:
If you intend to cause bodily injury to someone and you knew it was likely to cause death, and you were reckless as to whether death occurred then it is murder (otherwise it is manslaughter).
NZ’s felony murder rule:
If you intend to cause greivous bodily harm, and are doing it to facilitate a serious crime, or to facilitate escape from police, and a person dies, then it is murder, even if you didn’t think your actions were likely to result in death, or were not reckless.
Ok, LexisNexis finally decided to be available, and it turns out that I had forgotten that there was additional evidence supporting his claim that the gun went off accidentally presented at the appeal that overturned his murder conviction (I had remembered that had always been his claim but not that there was additional evidence).
To make up for posting immediately rather than waiting for the database to come back I shall quote the Judges at the appeal