At the time I struggled to ascertain whether Roughan was being deliberately deceptive or he just didn’t get it. He essentially quoted the non-controversial, much more straight-forward, parts of the anti-smacking law, the new s59 (1),(2) and (3) of the Crimes Act, to attempt to prove that the law was not confusing and claims to the contrary were a smoke screen put up by those who desire “the right to flog children.” Aside from his slander, his article was widely criticised because he omitted to mention the most controversial and confusing clause in the new section: s59 (4).
More than one person asked me to write a critique of this piece but was unable to due to my injuries flaring up badly this week and massive transport headaches. I also worried that my status as a law student meant anything I wrote would not carry the necessary weight (funny how that does not apply to journalists with significantly less law papers to their name than I). Not to worry, because today the Herald features a most excellent response by Jim Evans, Emeritus Professor of Law at the University of Auckland no less; see “Jim Evans: New section 59 is clearly a mess.”
Professor Evans clearly and simply explains not only the confusion caused by the controversial sub-section (4) but also the less widely noted but equally concerning problems that sub-section (2) creates. He concludes with what we have consistently maintained,
“This is not clear legislation. In creating this law, Parliament abandoned its constitutional responsibility to say with clarity just which conduct is criminal.
The section results from a political fudge. Whatever other views one takes about the topic of smacking, that much at least ought to be kept clear.”
New section 59 substituted
Section 59 is repealed and the following section substituted:
“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.”
Fisking Margaret Mayman: The Flawed Moral Theology on the Smacking Referendum
Fisking Ian Hassall: The Arbitrary Ethical Reasoning on the Smacking Referendum
No Defences Permitted for the Accused