Tag Archives: Section 59

I don’t see a test case

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Much has been said about the poor reporting of the case of James Mason, who was yesterday found guilty of punching his four year-old in the face, but the thing I can’t figure out isn’t the focus on the ear-flick or whatever, but why anyone thinks it is a s59 test case. From having read the Stuff and Herald stories, I gather the following:

  1. To qualify as a s59 test case the verdict would need to hinge on a question of law in the new section of the Crimes Act. Mason would have had to admit striking his son and claim it was either inconsequential or not for the purpose of correction but for the purpose of preventing harm.
  2. Mason denied having struck his son, thus negating the possibility of any defence on either of those grounds.
  3. Mason’s denial was contradicted by two witnesses who testified to seeing him do so.
  4. The jury found that as a matter of fact Mason did strike his son, and duly found him guilty, there having been no argument that it was justified on the grounds of being inconsequential or for the purpose of preventing harm.
  5. Since Mason didn’t appeal to a matter of law, but to a matter of fact, the case couldn’t have been a test case no matter what the verdict was.

It may be because I haven’t read widely today, but the only other person I’ve seen make this argument is RedLogix at The Standard. Are we missing something here?

Aside from which, let me repeat the sentiment that those who want to burn political capital by defending a man who punches a four year-old in the face in public are more than welcome to do so.

L

Sacrificing families for political gains

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The section 59 debate, for the first time in a long time, lifted the lid on the New Zealand “family”. What we found was a fight waiting to happen: the core of the debate was not smacking, it was the nature and role of the family. How should we balance the competing interests of the family, its individual members, the community that surrounds it, and the state which we rely on to intervene when necessary and butt out the rest of the time?

How the 2008-2010 government would address that gulf fascinated me. It seems so intractable, yet addressing it is so necessary. National have chosen Christine Rankin, they have chosen to make the Families Commission incapable of progressing this.

It’s not Rankin’s support of the pro-smacking referendum, it’s not her links to the conservative Christian lobby, nor her links to the crime and punishment lobby, the anti-transparency brigade, or the right wing political donors. It’s her track record of divisiveness, or polarising issues and debates.

By choosing Rankin National may have discharged their debts or paid back their supporters, but in the process they’ve sacrificed progress, safety, and growth for our families.

[Ari and Julie have both written good pieces on Rankin’s unsuitability for the role separate from her divisiveness]

Meaningful referenda

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Later this year we will have the opportunity to vote on a referendum asking:

Should a smack as part of good parental correction be a criminal offence in NZ?

There are two pretty serious problems with the question. Firstly, it has rolled two ideas together but we only have one vote. What say I believe one should not criminalise good parenting (“No” to the explicit question) but I believe that smacking is not good parenting and should be criminalised (“Yes” to the implicit question)?

Secondly, if the referenda succeeds what should the government do? The referenda is intended to be about repealing the current section 59 and replacing it with an explicit permission to use physical discipline for correction, but that’s not what it says. The government would be entirely justified in saying that the law as it stands is not criminalising good parents.

So we have a question that is not straightforward to answer and which doesn’t actually say what it wants.

I believe we should change the process for setting the question for referenda so that they are clear simple questions which provide an unambiguous direction to government. This probably means groups providing a description of the issue as well as possible questions if they wish then the Office of the Clerk getting the possible questions checked or new questions drafted so that the group can be given a choice of questions which are simple, clear and directive.

Section 59: How did the politics get so murky?

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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. 

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. 

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:

  1. It was a Green bill – that made it easier to paint as extremist. 
  2. Labour dithered – which made it appear that this was an area of potential weakness
  3. 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.
  4. 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.
  5. 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. 
  6. 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 :]

Rights vs traditional values

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Over at Still Truckin’, Ari’s posted about the effect of the same-sex marriage debate in the United States. While I’m not totally in agreement that a scaring the conservatives is a huge success (it’s not that hard for a start :) it has illuminated a huge divide within the United States, and perhaps within our own community.

Some of the academic analysis has looked at the tension between the “rights” frame and the “traditional values” frame which occurs in the debate. On the one hand we have GLBT communities arguing for equal rights, on the other some conservative Christian communities trying to protect the traditional values of their faith and the wider society. In much of the world the “rights” frame reigns supreme, but in the US they seem to have found the tipping point, and the rights arguments that win elsewhere fail in the face of moral and social conservatism and the defence of the family.

In New Zealand we see the same divide: Civil Unions, Prostitution Law Reform (rights of the sex workers to safety vs traditional values of sex-within-marriage), section 59 (rights of the child vs traditional values of child rearing and families). With section 59 are we coming toward the tipping point; where the traditional values of some will outweigh the arguments for the rights of children?

And if we are shifting the balance in those newer rights spaces, will we see it shift in existing issues?

In particular National’s plans for education raise that flag for me – increasing funding for independent schools but capping spending? It sounds like it’ll decrease equity of access to quality education for all students (so a step backwards for children’s rights) to afford an increase in funding for schools specialising in traditional morals teaching.

So, will we follow the US and let a conservative groups arguing for traditional values start to eat away the rights gains? Or will we stay true to NZ’s progressive history of advancing our citizen’s rights?