Friday, May 04, 2007

Craig Smith explains the new bill


Here is the full SOP (Supplementary Order Paper) which introduced it to
the Parliamentary process:
It says that the amendment is actually going to become part of the new,
re-written Section 59.

To get one's head around all this stuff, one needs to watch the two
video clips listed here. Be quick, because they don't stay on these
websites for long.

Close up Wednesday 2 May 2007 with Simon Barnet, Helen Clark, John Key &
Sue Bradford, under title, "People power or political brinkmanship."
TV3 Wednesday 2 May 2007, Police Commissioner Howard Broad, under title:
"Destiny and the 'anti-smacking' legislation"

The CloseUp clip shows Key saying the bill was going to pass as it was
and would criminalise every parent who ever smacked. "The Bill is [now]
better than it was from our perspective. We don't believe that good
parents will be criminalised. But let me say this Mark: If once the Bill
is passed, if good parents get criminalised for
lightly smacking their children, and I become Prime Minister of New
Zealand, we will change the law."

I am going to shamelessly focus on Key's slip of the tongue, calling
parents criminals. Simon Barnett says in the clip above that Parliament
has treated the parents of NZ with complete contempt. And this is why.
They hold us in contempt. Every thing Bradford and Clark and even Key
says on this is that Section 59 had to be changed to make NZ a less
violent place. Now remember: Section 59 is only even raised as a defence
1.4 times a year and over half of those are found guilty.

So what is their problem with Section 59? I thought it was the provision
for parents to use "reasonable force" with their children and that Kiro
and Bradford and the pro-repealers were all saying that severe beatings
and abuse of all kind were hiding behind this label of "reasonable
force". But then we find that Bradford's re-write of Section 59 DOES NOT
get rid of the "reasonable force" provision.

So what IS their problem with Section 59? It is that Section 59 says it
is RIGHT ("parents are justified") to CORRECT their children. Bradford's
re-write of Section 59 emphatically says that for parents to CORRECT
their children is WRONG. Her bill's outstanding trait is that it creates
a new crime: correction of children with the use of even the most
reasonable level of force.

The police are instructed in the Bill (but Police Commissioner Howard
says they always have it) to use discretion. But this discretion is to
be used, if they want to use it.....they don't have to.....when they
come across "offenses" (parents using force to correct their children)
which are "inconsequential". Clark says a couple of times that the law
should not and will not, because of this amendment, "concern itself with
trifles". They make it clear that any use of force that is not
"inconsequential" is unacceptable violence.

At the original press conference to announce this amendment, a reporter
asked Bradford if light smacking was now OK. Her response: "Not it's
not. Not at all."

At this same press conference, Key said, "The Prime Minister and I put
politics aside and let sanity prevail." As I heard someone else say,
"This Prime Minister NEVER puts politics aside." Key went on to
enumerate National's three objectives in this: 1) That parents can have
confidence they won't be criminalised for "lightly smacking a child"; 2)
police have clear guidelines; and 3) "I think it's a very important step
for New Zealand in becoming a safer and less violent community."

They all agree on this: that Section 59, which says it is RIGHT for
parents to CORRECT children, is what is causing NZ to be a violent
society! Key is saying all us parents ARE already criminals. Bradford
and Clark have been saying it over the past month or six weeks ever
since Labour MP Russell Fairbrother circulated a bizarre opinion that
smacking has been illegal for over 100 years.

The amendment will be subsection 4 of the new re-written Section 59, so
it will look like this, barring any new amendments:

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 disuptive 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 police have the discretion not to
prosecute complaints against parents of any child, or those standing in
place of any 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 pursuing a prosecution.

Note that subsection 4, this new amendment by Key, Clark, etc., refers
to "an offence involving the use of force against a child". That is the
offence of "correction". It is not an offence to use "reasonable force"
on a child to minimise harm, stop criminal, offensive or disruptive
behaviour or when the "reasonable force" is incidental to good care and
parenting (subsections 1a through 1d). The offence in using ANY force
with a child is when the purpose of using the force is correction
(subsection 2). The amendment says the Police have the option, the
luxury of turning a blind eye, if the force used for correction, which
is a criminal offence according to subsection 2, "is considered to be so
inconsequential that there is no public interest in pursuing a
prosecution." But they don't have to ignore it, because sebsection does
define it as a crime, regardless of how inconsequential it is.

John Key says that means light smacks will be ok. Bradford insists that
light smacks are never ok. In the CloseUp clip, Bradford says, "The
Police will still investigate, I hope, every report of assault on a
child and that is as it should be." She then said the amendment was "a
direction to Police making it clear that Parliament is saying if the
offense is totally inconsequential, that Parliament is not expecting
that the Police should feel that they must prosecute."

Light smacks that are inconsequential MIGHT be safe from prosecution,
but may not be safe from investigation and reporting to CYFS, as Simon
Barnett points out on the CloseUp clip. Once CYFS gets involved in a
child investigation, life as you know it comes to an end. As talk-back
radio has been saying: Police who do nothing about an investigation into
an inconsequential incident with parents A & B will be hung if later on
that same A & B severely abuse the same kid. So Police will investigate
if it comes to their notice and will probably at minimum refer it to

Lights smacks that are inconsequential are, as every parent knows,
inconsequential and ineffective and useless. The smack is delivered in
the objective that it will be CONsequential, not INconsequential. That
is, effective smacking for corrective purposes under this new bill will
be as illegal as ever Bradford wanted it to be at the beginning. The
only refuge parents may find, if they are accused and investigated for
correcting a child using force, is to make out that their corrective
discipline was possibly corrective, but in fact inconsequential; or that
it was NOT corrective but instead designed to stop criminal, offensive
or disruptive behaviour or that it was incidental to good care and

Yes, I believe correction is an essential part of good care and
parenting. And it includes a lot more than light smacks. But it is about
to become a heinous crime, one that can be prosecuted under the laws
against assault and worth from 2 to 5 years in jail. Force used to
correct a child is not just smacking. It includes grabbing my child by
the arm or shoulders and marching him to the neighbour to apologise for
throwing rocks through his garage window. It includes forcibly taking
his piggy bank out of his hands and taking his money out of it to pay
the neighbour for the damage done. It includes forcing him to sit at the
table and write and re-write until it is done properly a formal letter
of apology including an assurance that he won't do such daft things
again. And if it means he has to forego tea and dessert that night and
any electronic entertainment or communication for a month to force him
to do as I require, so be it.

I fielded a number of calls and emails today about people wanting to
leave NZ, wondering what it's like in various parts of Australia.

Let me also quote from the video clip above as Campbell Live interviewed
Commissioner for Police Howard Broad:

Campbell: Is this "discretion" going to be applied differently in
different parts of NZ?
Broad: Yes, it's a human-made decision with 8,000 officers applying it
up and down the country. "Reasonably confident that, subject to a small
amount of variation, we'll be able to work."
Broad: "There is no mandatory exercise of the powers of the Police.
Discretion always applies."
Broad: "What the proposed legislation does is lower the threshhold
around what is considered to be the level of force before a prosecution.
I think it's actually quite substantially reduced that. And that is
going to be where the difficulty is for Police, finding that point.
That's where the difficulty will be. But we'll find it, and we'll be
guided by the courts, we'll be guided by our own experience; the Police
Complaints authority might have a part to play, and so on."

Capbell: Are the use of jug cords and riding crops out of the question
Broad: "Clearly in my view stitations using implements like jug cords or
practically any implement, I think, is now considered beyond what is
acceptable. I think it's been actually quite a useful exercise, really,
because the country is coming to grips with the causes and the factors
associated with violence. And it's publicised and discussed, the use of
force, in a whole range of circumstances. I think that's been extremely
valuable. I say again that this legislation has reduced the threshhold
at which action will be taken. And I think people do have to come to
grips with that now."
Campbell: "So people who are accostomed to using things like wooden
spoons or any kind of implements have to understand that the law has
changed and they can no longer do that?"
Broad: "I think so and also we've got to be extremely careful in those
moments when force is applied 'where' to a child. You know, hitting a
child in the head for example; I don't think that's acceptable."

Campbell: "But the sort of scaremongering that went on that any kind of
smack, any kind of small slap on the wrist or bottom was going to be
illegal is now dealt with by this use of the term 'discretion'?"
Broad: "I think so, and the proposal in the legislation 'for the
avoidance of doubt' makes it absolutely crystal clear that the Police
are expected to apply that discretion for levels of force that are
inconsequential. And that is a fairly clear message to the public, if it
was ever needed, for the Police."

Campbell: So my summary would be that you think this is about as good an
outcome as we could have had?
Broad: I'm actually quite comfortable with where we are.

Now there are some scary things here. He says the threshhold for the use
of force has been quite substantially reduced. He's talking about force
used to correct, not do the things listed in subsections 1a through 1d.
It has been reduced to inconsequential before you MIGHT not be
prosecuted should such a use of force come to the notice of police. And
Broad says it will be tricky finding that point, but they'll be guided
by the courts and the complaints authority. That means it will require
family after family to be systematically destroyed by court processes
over giving a smack with a wooden spoon, regardless of what the child
did, in order to set definitions and precedents.

Reasonable force is ok for stopping offensive behaviour (subsection 1c)
but not for correcting the offensive behaviour. Where do you draw the
line? What is it about wanting to correct bad behaviour into good that
is so hated by Bradford? It is not clear if implements are allowed to be
used in the purposes named in subsections 1a through 1d. I've writen to
Bradford, Sir Geoffrey Palmer of the Law Commission, Howard Broad of the
Police Commission, Rajen Prasad of the Families Commission and several
others about this, the definition of "correction" and other things back
in April. Let's see what they say.

As far as I can make out, politically, Labour was damaged big time and
continuing to take many hits. They were bleeding all over the place, and
deathly pale. If Key had stood back, they would have died at the polls
and the next election. Instead, Key gives Clark a blood transfusion,
saves her and tosses a lifeline to the Greens at the same time. In doing
so he has secured the total demise of the National Party, caused them to
be seen as Labourites dressed in Blue.

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