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No

August 21st, 2009 by Madeleine

The results of the anti-smacking referendum are in. In answer to the question “Should a smack as part of good parental correction be a criminal offence in New Zealand?” 87.6% of voters said “no.”

Fairly resounding.

Vote No seem happy. We are too. Now it is time to sit back and see how the government responds. Nothing less than a law change to clarify what is and is not legal, with regard to smacking, will make me happy.

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102 responses so far ↓

  • The referendum is non-binding.

    That means National are not obliged to act.  They will only act if they believe in democracy.

  • "I will not vote National on the next election if the referendum is ignored" campaign? Welcome to the Internet age 😉

  • Prime Minister John Key still has an out.  The low voter turnout means that fewer than 50% of voters voted No.  He can maintain he doesn't have a mandate to change the law.

  • Mark V wrote: "The low voter turnout means that fewer than 50% of voters voted No.  He can maintain he doesn't have a mandate to change the law."

    Does he have a mandate to be Prime Minister? He took office with 45% of the vote.

    The turnout was good for a referendum. We brought in MMP on about the same turnout, we accepted the Mt Albert result, we elect mayors and councils on less all the time.

  • Mark V wrote: "The low voter turnout means that fewer than 50% of voters voted No.  He can maintain he doesn't have a mandate to change the law.
     
    Does he have a mandate to be Prime Minister? He took office with 45% of the vote. 
     
    The turnout was good for a referendum. We brought in MMP on about the same turnout, we accepted the Mt Albert result, we elect mayors and councils on less all the time.

  • Actually, the Government's best out is to interpret the No vote as a vote for the staus quo. After all, as the police reports point out, "smacking" in itself is not against the law (see “Smacking not an offence”). Only a Yes vote could correctly be interpreted as a request for a law change.

    Yes, I know other inteprret this differently – but that's inevitable given the dishoensty of the question.

    My pick is that the govertnment will take some sort of action (not a law chanege) to clarify to the public what the actual law is and how it is operating. Perhaps a publicity campaing actually showing the data.

  • "Should a smack as part of good parental correction be a criminal offence in New Zealand?"

    Well even *I* agree to that!  Now as a follow up can we ask the more sensible question:

    "Is a smack ever part of good parental correction?"

    Without this question being answered the first referendum is meaningless.  I can believe that in ALL instances where a smack is used as part of good parental correction there should be no criminal charge BUT at the same time believe that this is an EMPTY SET… ie.  there is never an actual instance where it is "good parenting"

    What would it even mean for Key to act upon it?  It does not actually say to do anything!

    What a joke.  What a waste of money.

  • How can John Key act on it? The question has nothing to do with the law. If the question was 'should the ammendment to section 59 be repealed?' then he might be in a position to do something.

    Ask a silly question get a silly answer.

  • Key's response was interesting.  Basically he said that as expected he now knows that most New Zealander's don't think a parent should be criminalised for a light smack – and that he is happy that the present law is in fact making sure this does not happen.

    Waste of money anyone?

  • Ken whether smacking is illegal under the new s59 of the Crimes Act is unclear. Experts in legal interpretation (as in professors of law) agree that as worded it could be read either way. I have been in the same room as John Key and have heard him concede this, he referred to it as being drafted like "a dog's breakfast." Just because the police right now are saying they are reading it one way does not mean they do not have room to read it a different way in the future.

    The law must be clear enough for citizens to be able to understand it. If it is not it is not just to demand they obey it.

    As for Max and Guest's points that the referendum question did not make it clear what a No vote would require of the government I dispute this.

    Smacking was lawful.

    Then s59 got amended.

    The amendment made it unclear whether smacking for parental correction was or was not lawful – Sue Bradford herself gives different answers depending on what day of the week it is as to whether she intended to make smacking illegal or not and whether it is or not; experts in legal interpretation agree it is unclear; the populace was confused – there is not even agreement in this thread!

    A referendum was held asking whether smacking as a form of parental correction should be legal or not.

    87.6% said smacking should not be illegal.

    The government, if it is to listen to the referendum result, needs to make it clear, once and for all, that smacking for the purposes of parental correction is legal.

    How it achieves this could vary from adopting one of the bills that are all ready to go or simply by improving the ambiguous wording of the current s59.

    As for the waste of money charge. Wording that badly drafted should never have been passed in the first place; the government failed in its duty to write clear and unambiguous law. It then refused to do anything about it in the face of public outcry. It then refused to minimise cost and hold the referendum with the election and now it wants to cry money wastage?

    Should citizens sit back and do nothing in the face of sloppy and careless governing that has the potential to criminalise good parents? That result may have only had a 54% turnout but the result reflected the polls done in the months leading up to it. Do you seriously think if the referendum had been tagged to a general election the result would have varied significantly? The fact is that the majority do not support smacking being illegal so before you cry money wastage again ask yourself whose money was it to 'waste'?

    I agree with you that it was a shame to have to have spent that much money correcting a mistake but responsibility for the expenditure needs to be placed honestly.

  • "A referendum was held asking whether smacking as a form of parental correction should be legal or not. "

    No it wasn't Madalaine!  When did this referendum take place?  The one I saw asked:

    "Should a smack as part of GOOD parental correction be a criminal offence in New Zealand?"

    This is a very different question – as I explained above.  It assumes that smacking CAN be part of good parental correction.  If you disagree with this assumption how are you to answer the question which was actually asked (ie. not your version of it)

    As I said.  If I answer NO to the question "Should a smack as part of GOOD parental correction be a criminal offence in New Zealand?" I can still answer YES to the question "Should a smack as part of parental correction be a criminal offence in New Zealand?"  How?  Because I think that in actual fact the set of times where it is good correction is an empty set.  Does that make it clear why it is a badly worded and almost meaningless question?

    87.6% said smacking should not be illegal WHEN IT WAS FOR *GOOD* PARENTAL CORRECTION.  But this does not mean that they thought there were any actual instances of GOOD smacking.  Have I laboured this point enough yet?  It just seems that people are not willing to accept that it was a very badly worded question.

    Even you had to change the actual wording of the referendum in your replky to make your point – so I guess you agree.

  • "Should a smack as part of GOOD parental correction be a criminal offence in New Zealand?" 

    Because a smack can be part of good parental correction, so the question is whether we want to make this illegal as well. The 'bad' smack was and is always illegal.

  • Sid – I think you missed my point entirely.  Please re-read the post.

    "Because a smack can be part of good parental correction" – many people in New Zealand (rightly or wrongly) disagree with this statement.  For them, the question was a meaningless one.  For those people who agree with your claim this might be hart to see.  Try this:

    "Prostitution, as part of a healthy family life, should not be a criminal offense in New Zealand."

    Yes or No?

    Well if its healthy, sure, you might say BUT it never is healthy.  So the question is a loaded and pointless one.

  • Haha stupid question stupid answer…..
    The halfwits that did this referendum made sure they skewed the question, to be sure they would get the result, but they've skewed it so far it is now not relevant….
    I find this funny.
    $9 million down the drain.
    All the pro-smackers need to do something productive with their time, if you are worried about society, go help some homeless people, do something useful.
    Smacking kids won't make this world a better place.

  • Guest, clearly you have not read the legislation that the question was written about.

    Subsection (1) says that some force is permitted int he course of "good care and parenting." That's where the "good" part came from.

    Subsection (2) says that this does not permit any force to be used in "correction."

    The deduction is simple: Correction is not part of good parenting. People who knew what the law said would have no trouble understanding the question. The question asks us if the behaviour banned in subsection (2) really belongs with the permitted behaviour in subsection (1). Now, that would be a pretty ugly referendum question, so they simply put it into normal english.

    Amazingly, thousands and thousands of people understood it.

  • "Prostitution, as part of a healthy family life, should not be a criminal offense in New Zealand." 
     
    Yes or No? 
     
    Well if its healthy, sure, you might say BUT it never is healthy.  So the question is a loaded and pointless one.

    We'll change this question slightly to be more like the referendum:

    "Should prostitution as part of healthy family life be a criminal offence in New Zealand?" 

    I would vote YES. What is so confusing?

  • For those who says the question is confusing, may be you should tell us what would be a better question. And we'll see if your question can stand up to the same kind of criticism.

  • "Should prostitution as part of healthy family life be a criminal offence in New Zealand?"  
     
    I would vote YES. What is so confusing?

    If it is healthy in every sense why would you want it to be a criminal offense?

  • Hi Max,

    It would be like asking:

    "Should assaulting a child as part of good parental correction be a criminal offence in New Zealand?"

    In which case, I will definitely vote YES. There is no such thing as assaulting a child as part of good parental correction.

    The point is this, there is good and bad smacking. The thousands of NZers can identify good and bad smacking and spoken up to make smacking as part of good parental correction legal.

    Also as pointed out, the problem is that the anti-smacking-bill is very unclear about what is and is not legal.

    Now, since you think the question is not clear, may be you could tell us what would be a better question.

  • People just love to put their own interpretation on these results, don't they. And, in this case there is a strong ideological prejudice.

    Here is my attitude:

    1: Personally I am against using violence (physical and psychological) on children. That said I know I wasn't a perfect parent (who is) and I am sure there are events with my children that I am ashamed of.

    2: I don't believe parental use of light smacking is a question for government or law. I can understand why some parents have become concerned and mislead by the propaganda.

    3: I didn't vote in the referendum because logically I would have to vote no – but that would have been taken as evidence that I wanted the law  changed – which I don't. The question was dishonest and loaded. However, I can see that many parents – who think, like me, that the law should not be involved in such good parenting – took the referendum as an opportunity to express that belief.

    4: Given that "smacking" is not an offense in New Zealand – the govenrment cannot take the result as a reason to change the law. Madeleine – you may well be right the the act is poorly written – it is, after all, the result of political compromise. And, I bet there are many laws that can be described as a "dogs breakfasts."

    However, the government (and the previous government) has made clear how the law should be interpreted. The police are clear on this – as their interimn reports show. These repotrs show the law change has had a minimal effect – and that good parents are NOT being treated as criminals.

    5: I think the interm police reports should be far more readily available. They are clear in the data and conclisions. We will have a final report in a few months. I think this should be more widely disemminated (The media is doing an attrocious job in this respect). The goivernment should make the facts more widely available.

  • Continuation:
    6: I think all the govrernment can do is to get the facts out there so as to placate any genuine concerns parents have. Those conerns are just not factually based. Of course the govrernment will also do things like ask for more specific reporting – hoping  this will also help to counter those concernes.

    7: We are, of course, stuck with ideologically motivated people who are ignoring the facts of the matter, ignoring the police reports, and claiming that parents are being treated as criminals. But without being able to find and cases. These people are bing dishoenst.

    8: I am sure that these people will continue their campaigns However, if the government can get the facts out to concerned parents I think with time the public will become more aware that these campaigners have a relativelu narrow, conservative, relgious motivation. (One just has to look at who is active at the monet to see the dominant conservative Chrsitian streak. They don't let truth get in the way of their story – but, in the end, that will be their come-uppance.

  • 7: We are, of course, stuck with ideologically motivated people who are ignoring the facts of the matter, ignoring the police reports, and claiming that parents are being treated as criminals.

    And what are these facts?

    Just because no body has been arrested yet, doesn't mean parents are not being criminalised. If the law can be interpreted to describe what good parents do as criminal offense, then that is criminalising good parents.

  • Sid – you can access the recent police review report here: "Smacking not an offence".

    I am afraid the "interpretation" is being done by fanciful conservate Chrisitian bloggers. And it's different to how the police and givernment interpret the law.

  • Ken the interpretation is being done by a number of people, including professors of law – experts in legal interpretation – see "Jim Evans: New section 59 is clearly a mess."

    Whilst I concede that one can get both readings from interpreting the law, the wording seems stronger read as any form of force for the purpose of correction is illegal which would cover smacking.

    At the end of the day it is the interpretation of the court that counts and the court relies primarily on the wording of the statute and the case law guiding its interpretation to form its interpretation – not police reports, not media statements from politicians, not pamphlets or education programs.

    Some report the police have issued does not change the fact that the law is confusing and appears to deem smacking illegal and if you are facing a court you cannot say to the judge "but your honour I know the law seems to say that but have you read the police report that Ken Perrott told me about?"

  • "Those conerns are just not factually based." This is clearly questionable, and in my view just mistaken. The following are facts:

    1) Current law criminalises force against others in general, but makes an exception for force that is "incidental to good care and parenting."

    2) Current law insists that this exception should not be taken to apply to any force used as "correction."

    Given that absolutely nobody denies these two facts (while most of us grant the additional fact that there appears to be some conflict here), it's not true to say that concerns about smacking being a crime are not factually based. If the concern is that, according to law, smacking for corrective purposes is a crime, then the concerns are factually based.

    If the concern is only about the further possibility that police will definitely prosecute parents who smack, then true, the concerns are not based in obvious fact. They are based on possibility, and on what the police are entitled to do. But the concern here is primarily about the fact that corrective smacking is currently, according to law, a crime. Denial that this concern is factually based is most certainly not factually based.

  • "Those conerns are just not factually based." This is clearly questionable, and in my view just mistaken. The following are facts: 
     
    1) Current law criminalises force against others in general, but makes an exception for force that is "incidental to good care and parenting." 
     
    2) Current law insists that this exception should not be taken to apply to any force used as "correction." 
     
    Given that absolutely nobody denies these two facts (while most of us grant the additional fact that there appears to be some conflict here), it's not true to say that concerns about smacking being a crime are not factually based. If the concern is that, according to law, smacking for corrective purposes is a crime, then the concerns are factually based. 
     
    If the concern is only about the further possibility that police will definitely prosecute parents who smack, then true, the concerns are not based in obvious fact. They are based on possibility, and on what the police are entitled to do. But the concern here is primarily about the fact that corrective smacking is currently, according to law, a crime. Denial that this concern is factually based is most certainly not factually based.

  • That's it exactly Madeleine. The important issue is what the legal facts are, and not whether or not the police have been given the right to ignore those facts.

    I need to know if my actions are a crime or not. It's cold comfort to be told "we could prosecute because you're a criminal, but trust us. We won't, as a matter of policy."

    If they prosecute, it will be no use saying "but what about your non-binding policy?" The comeback is obvious: "Sorry mate, the law is the law."

  • Hi Ken,

    A decrease is expected when something is outlawed. The anti-smacking bill is still criminalising parents as it is written. Whether police act on it or not is irrelevant.

    Currently, this referendum seem to be supported mostly by those with a fundamentalist and/or conservative religious agenda.

    Oh yeah, when all else fails, blame it all on religion! Blurt it out without any data whatsoever.

  • In a speech in 2007 John Key stated that…


    “Proponents of the [anti-smacking] bill say that doesn’t matter; that in reality no one is ever going to be prosecuted for lightly smacking their child. But if the reality is that no one is ever going to be prosecuted for lightly smacking their child, then don’t make it illegal. Don’t make it a crime. It’s poor law-making to write a very strict law and then trust the police and the courts not to enforce it strongly.”

    Just two years later he is now doing the exact opposite.

  • So lets see:

    1: You guys seem to accept that the law as it is currently working has not produced any clear cases of parents prosecuted for "normal" light "smacking" of their children. You accept the police and goivernment assessement of the situation. Might I suggest, therefore, it is hypocritical to claim that our current law "criminalises" parents?

    Of course. there is the proviso that the final review report might find some examples. That the extra monitoring imposed by the government might throw up examples. If they do I suspect they will be very few in number. (Of course we should really be concerned with the very large numbers of cases where children are being abused. That's what hurts me. Although some proponets of the No-vote will try to support some of these abbusers in an attrempt to find evidence for criminalisation of parents).

    2: Your fall-back positon is that the law is "a dog's breakfast". This may well be correct – as similar jusdgments about other laws will be (and which you are unconcerend abgout). But – this is recent history and we can understand how the details arose as a political compromise. Not a good way of making law. Might I suggest that parliament probably could not do it better in the current situation – suggesting that it is wise policy not to interfere unless there is evidence of real injustice?

    3: Perhaps one resolution is to actually take a specific case to obtain a judgement – to test the law. The police don't seem to want to do that – presumably they feel confident with the current interpretation. (Perhaps you should stage some events to provoke such a case??)

    4: As time goes on and there are no cases of real crimilisation of normal parenting – perhaps people will have less concern. The relatively low turn-out for the referendum sugggests this has happended to some extent already. Actually, the recent polls suggest that the lack of concern is even greater. perhaps many people were voting to declare their position rather than ourt of cocern for the law.

    5: Sid – you suggest I have no data for my assertion that currently any campaigning after the referendum is being done mostly by Chrisitan Conservatives. It's easy to find some data – do a survey of current blogging tasking such a stance. Some examples:

    NZ Chrisitian News – 9 posts in the last week;
    Say hello to my little friend – 5 posts;
    True Paradigm – 2 posts;
    MandM – 2 posts;
    TBR – 1 post.

    And there are probably more – I don't follow many. All these posts promote a similar message.

    It is sad that more liberal Chrsitians are making few comments (despite some poublic statments) – they should be out there fighting against that sort of conservatiism. But I guess that is a pronble  for Chrsitians – not me.

  • Ken, of the two possible readings of the law, if I were to put money on which one a judge would go with, I would say smacking is illegal. This stems from my legal knowledge and from reading experts in legal analysis commenting on it.

    You seem to think that the law is working if nobody has been prosecuted for smacking for correctional purposes (This seems to be John Key's line also). But the fact there have been no prosecutions only tells us that the law is not being enforced. This fact tells us nothing as to what the law is.

    In Key's announcements we are being fed are more promises that it won't be enforceed.

    This does not give us security that smacking is not illegal nor does it give us security that the law will remain unenforced forever. What happens when National are no longer govt?

    As for your data, that is a bit selective isn't it? To prove that its mostly being driven by the Christians alone lets survey the Christian blogs… to be accurate wouldn't you also need to survey the non-Christian ones whose politics are similar?

    Check Kiwiblog, Not PC, Liberty Scott, No Minister, Crusader Rabbit, the Dim Post and so on. Then compare the blog output factoring in normal frequency of posts for that blog and so on. Next you'll be telling us that 87.6% of the 54% who voted are all uber-conservative Christians.

  • Madeliene – you misrepresent me. I did not say it was "being driven by the Christians alone." I said that the conservative Chrsitians are the most active in the post-referendum campaign demanding a law change (I actually criticise the liberal Christians and their blogs for not being more active in restraining their brethren).

    I think my brief survey shows this – but you are welcome to survey the blogs in greter depth – I will be interested in your resulting data. it's not of suffcierint importance for me to ut the work in. (Although I have become quite interested in the funding of consevative Christian groups – both in terms of the overseas "subsidies"  and tax exemptions they get for "relgious purposes (my subsidy of their activity). I am doing a bit olf research on that.

    Your characterisation of the law as "not being enforced" is one I am sure Key and the police would disagree with. Sounds to me that you are trying to interpret the law to satisfy a campaign that is nhot warranted by actuall police activity.

  • Ken – hypocritical? I don't think that means what you think it means…

    Moreover, it migth be that there have been no prosecutions, but that, I remind you yet again, is not the issue, so it is a smokescreen to appeal to this. As you know, parents who were not prosecuted were nonetheless investigated by police. You may consider this nothing. I beg to differ.

    But that aside, I draw your attention, again, back to what the complaint is: That normal parents are in fact criminalised by the law. If you accept that police should not prosecute restrained smacking for corrective purposes, what makes you think that those parents should by criminalised by law?

    Stated differently: Why should the law not reflect reality?

  • We will go around in circles on this Glenn. The NZ Police 4th review document  says: “smacking” in itself is not an offence.” You can download the report here: “Smacking not an offence”.

    Frankly – I will accept the intepretation of the government and the police (who after all must administer the law) before I will listen to you – or anyone else with an ideological agenda on this.

    And I go with evidence – not figments of the imagination.

    I have yet to hear any detail of parents "crimilased" by the law. despite the police being required to report regularly on the application of this law , the government paying close attention and the public concern aboiut it. You would think they would have found something by now it it were real!

    Police prosecution may not be the issue for your agenda – but it is for concerned parents. I suspect that the referendum's higher turnout than expected from the polls (54% cf 18%) reflects that many people were choosing it as a chance to express their belief, rather than out of any real concern. In other words, the concern is not as great as it once was. As time goes on without any evidence of criminalisation of goood parents, I think the remaining concern will decline.

    As I said – this will go around in circles – no evidence of prosecutions – ideologically motivated people claiming nevertheless parents are "criminalised. – no evidence of prosecutions – ideologically motiviated people claiming parents are "criminalised."

    Until people get bored.

  • Perhaps we are going around in circles Ken because it didn't occur to any of us that when you kept claiming smacking was not illegal you meant it in the sense that it is not a criminal offence for me to shoot Glenn through the heart.

    Homicide is an offence but specific methods for it are not listed in the legislation (for obvious reasons); likewise with smacking, reasonable force for the purposes of correction is what is illegal, smacking is not specifically listed however, smacking being a form of reasonable force is covered and is therefore in that sense illegal.

  • Ken, I refer you to subsection (2) of the Crimes Act, section 59. It specifically states that any exception to the prohibition on force does not apply to force used in correction. This covers much, but it includes smacking.

    Smacking is not singled out as an offence on its own, no, that is correct. Nobody here is claiming this. Assault (not smacking) is the offence in question, and subsection (2) specifies – precisely to avoid the confusion that you are caught in – that force used for correction is assault and hence a crime.

    These are not figments of the imagination, this is raw information.

  • Hi Ken, why don't you do word count on them as well?

  • <h2>Bradford admits parents won't be allowed to smack</h2>
    <p>15/03/2007 15:30:39
    <!– story body –>
    <p>Sue Bradford has confirmed parents will not be able to smack their children after her bill is passed.
    <p>When questioned again today about the effect it would have on parents, she was asked whether it would be possible to smack children after her bill becomes law – and she said no.
    <p>Ms Bradford has made the admission in response to comments by Prime Minister Helen Clark before the last election, when Miss Clark stated publicly that she does not want to see smacking banned. Miss Clark made the remarks in an interview with Radio Rhema. When asked "so you do not want to see smacking banned?", the Prime Minister replied "absolutely not", saying it would be an attempt to defy human nature
    <p>Ms Bradford says Helen Clark is right, because her bill does not ban smacking. She says it is already illegal to smack children but her bill removes a defence of reasonable force for the purpose of correction. That is despite her insistence that it should not be called the anti-smacking bill.
    <p>Sue Bradford says if she wanted to ban smacking she would create a deliberate offence of smacking. She says she and the Prime Minister are singing from the same song sheet, as the Prime Minister knows, and she knows, that her bill is not about banning smacking.
    <p> 
    <p>From http://www.newstalkzb.co.nz/newsdetail1.asp?storyID=114074

  • Sid – don't understand your reference to word counts.

    Glenn – I have already dealt with the details of the legislation and how this is irrelevent. That's not what the referendum was about and those details are not what people voted on. And, lets face it, you would still not be happy if this was "tidied up" – you want a basic change. You have nothing to contribute unless you talk about the real changes you want.

    Madeleine. Now you are being silly. Probably because the facts are there is no evidence to support a claim that parents are being "criminaliused."  The opposite appears to be true. The concern of some parents is unwarranted – and some ieologically motivated people (as evidence by the blogs I quoted) are trying to whip up a campaign for their own agenda.

    Now, I accept that the police could well change their approach and that this could be come a real issue. That will surely be quickly revealed, if it happens, asthe situation is being so well monitored.

    I suggest you get back to me if and when that happens. Then nou might have some evidence to contribute to a proper discussion.

  • (Glenn here)

    Ken, criminalised does not mean prosecuted. Criminalised does not mean investigated. Criminalised does not mean harrassed or inconvenienced.

    Criminalised means that something is a crime by virtue of what the law says. If anyone is being silly about this, it is you with this word game.

  • Glenn – you forgot to add the NZ Police, the prime minister, the government and most of the parliament. You think we are all silly (which does suggest something, doesn't it?).

    As I said, get back to me when you have some proper evidence.

  • In the US, the "is spanking legal?" question plays out in the most serious possible arena.  Courts and agencies apply an open-ended (and/or nonexistent) standard to parents (who are typically not represented by lawyers) in a court proceeding that determines whether or not their children will be returned to their care.  1000 years of Anglo-American criminal legal procedures are set aside in these "quasi-criminal" juvenile proceedings.  When a court returns a child to his or her parents, there is no opportunity to appeal errors that occurred during the proceedings (because the case is now moot).  When a court refuses to return a child, there is no "final" decision that can be appealed.

    The net result is that there are approximately 3 million allegations of abuse and/or neglect in the US each year, with little to no constitutional scrutiny.

  • Ken, at the end of the day, it is the written word of law that is most important. Not some promises made by prime minister, some cops, and agencies.

  • Ken, I meant to say that your so call 'data' is appaling. I don't have time to scroll through all the blogs, but quickly heading over to Not PC blog revealed that as libertarian, he is against the anti-smacking bill. And for sure he isn't a Christian! He's got like 20 posts about this.

    I think PC got it somehow right, that this is more about control rather than about banning smacking. This will not just affect Christians, this will affect so many good parents out there, including your children when they become parents in the future.

    Many times, when discussing this topic, some people forget that it is not about children vs adults. These children will become adults and parents too.

    You are not protecting children with this anti-smacking bill. You're giving away your children's rights when they themselves become parents.

  • Sid – you are still talking about interpretation of the law. You, Madeleine and Glenn have one interpretation (and are using it to justify a campaign). I, the NZ Police, The MP, the government and most of our parliament have a different interpretation.

    If it turns out that this interpretation is faulty (as would be evidenced by clear prosecutions for only light smacking) then there will be pressure to change the law, to make it more specific. That, so far hasn't, isn't, happening – and there is very close moinitoriung of the situation.

    As I say – get back to me when we have suggensting the necessity of a law change.

    As for monitory the Blogs – Sid. Get too it. But be objective. What you have currently is Not PC vs MandM, Say Hello, NZ Chrsitian News, TBR, true Paradeigm . . .

  • SID"

    <span>"The point is this, there is good and bad smacking." – you keep just asserting this!  But this is for some poele the bery point of contentention!  I accept if you BELIEVE this (as I do as well by the way) then the referendum question makes sense.  But if you DONT believe this the referendum is meaningless.  My point was that for those people out there who think smacking is ALWAYS wrong there was no way to answer the referendum question.  </span>

    It is not a moral point I am trying to make – merely a logical one.

  • Ken, you do NOT have an interpretation of the law. You sare saying that the PM's instructions not to prosecute in accordance with the law actually changes what the law says.

    Get back to us when you have some evidence of that. Last I heard, we follow the rule of law.

  • <span><span>My point was that for those people out there who think smacking is ALWAYS wrong there was no way to answer the referendum question.</span></span>

    Max, assaulting children is always wrong to me. Yet if you replace 'smacking' with 'assault' in the referendum question, I still won't get confused.

    It's just common sense

  • Ken, I will never ever accept a bad written contract just because MP, you, police, John Key, or anyone else promise not to take me to court. It's stupid thing to do. Don't you think?

    In this case, you're signing away your rights and the rights of your children later as parents.

    Swallow your pride and open your eyes!

  • As a general world-wide rule, societies tend to fall into two types.  There are those with (relatively) simple, bright-line rules which allow the law-abiding citizen to proceed with confidence, and there are those with complex, vague, or even conradictory laws that always puts the citizen on the defensive.  Corrupt societies almost ALWAYS have laws that leave the "citizen" at the mercy of the official.  (I put "citizen" in quotes because they might as well be subjects.)

    The clearest example I know of this are the traffic laws in Moscow.  Foreign visitors are warned not to drive in Moscow, because no matter WHAT you do, you probably will have violated some law.  Unless you want to stick around Moscow for a month waiting for your date in traffic court, you tend to pay the officer a little money to take care of the matter for you. 

    The next clearest example I know is American juvenile court.  Parents have NO clear definition of what "good parenting" is.  That means that people with the power to take your children away can do whatever they want–unless you do whattever they want.

    Not good.

  • Glenn – and others choosing to interpret the law in the same way. Yours is an interpretation. Different to that of the NZ Police, government and most of parliament. The vast majority of the public is not at all concerned about the detail of the wording – only their perception. This perception will obviously change if we continue to see the law applied, and interpreted, in the way it is.

    Now, I believe it is possible to debate the fine points of the wording. In paricular the interpretation of the word "correction" – especially seen in the context of this legislation and the education Act. However, we could do this with any law.

    The evidence (which after all is the best test) shows that the law is not being interpreted in the way that you claim it should.

    Given that the government is obviously not going to open this up to anither free for all – I suggest you could more profitably spend you time in a positive manner. Rather than carping on critically and relying on your own unique interpretation.

    Why not make specific proposals? What specific regime would you like to see? Do you want re-introduction of caning in the school and family? What wording would you like to see? Make some positive suggestions.

    It's easy to be negative and anti-government, isn't it?

  • Ken, tune into Newstalk ZB right now – you can listen online – in a few minutes Leighton Smith will be interviewing an Auckland University law lecturer who has just earned a doctorate in law from Cambridge and is an expert in statutory interpretation.

    He will say you are wrong. I have no knowledge of his personal opinion but if he is an expert in legal interpretation he will agree that the law makes smacking illegal as everyone who knows what they are talking about can tell you plain as day.

  • <span><span>Ken, reading through Family First's list I find it very hard to justify your claim that the police aren't acting as if smacking was illegal.  
    http://www.familyfirst.org.nz/index.cfm/Issues/Anti_smacking_Bill    
       
       
    What about this one?    
    http://www.stuff.co.nz/national/4061    
    n a second incident two months later, three police officers arrived at her family's home, acting on a complaint from a neighbour.    
    The mother had smacked her child on the backside with the palm of her hand during an incident around the trampoline in the backyard.    
    She said the police had been kind, but had warned her of possible charges if it happened again.    
       
    —–    
    </span>  
    So if she smacked twice, she would be prosecuted.  
    <span>  
    But what concern me about this particular case is the attitude Bradford took – she basicially went on television and told this woman to get help, implied that there were serious violence issues within the family and more.    
       
    Yet this woman was a self-confessed supporter of the bill, and an anti-violence educator!  
       
    *This* is what scares people – the promise of "good parents won't be prosecuted" suddenly becomes "if you are spoken to, we will make sure no one thinks you are a good parent".  
       
    But the promise "not to prosecute" even of it'self isn't reassuring, as everyone knows that CYFS doesn't need to go to court to wreck havoc on a family.</span></span>

  • Scrubone – read the police review report (available to download from “Smacking not an offence”). I think nthis is a bit more reliable than anything from family fist.

    \As I have said -repeatedly – the operation of this law is being very closely monitored. There is reliable information out there. You don't have to rely on ideologically biased sources or anectodale comments.

  • I agree that documented official reports are more reliable than lay gathered testimony but that doesn't mean everyone is lying about their experience. The suggestion that the state agencies and the politicians are not prone to ideallogical biases is naive.

    That said, as we have said to you repeatedly Ken, the operation of the law, whether it is being enforced or not is not our primary issues. Laws should not be on the books if the government does not intend them to be enforced. Further this monitoring and promise to not enforce will only last as long as this government wants it to or remains in office.

    Once again, the law itself is what dictates what is and is not criminal and is what gives the guarantee – not the politicians, not police reports.

  • Ken,

    What you are also missing is the negative impact that this law has within families, most of which is not quantifable in police reports
    The parents feel its impact, but thee

  • Mickey – that is a subjective comment. I am not hearing that assessment generally. Only from those who have an ideological committment to whip up unwarranted concern.

    Madeleine – it's alll coming back to interpretation, not evidence. There is no evidence of criminalisation of parents.

    Disuccsion of the details of the law might have some value. However, I think the world is a fascinating place and there is much more out there to spend my time on. I have enough research interests on the go at the moment. At least until evidence of real criminalisation of innocent parents comes in. Otherwise this issue will just die out.

    In regard to the wording of the legislation I had a brief glance at Glenn's blog on this. It presumably represents the fall back positon being advocated here.

    I won't comment there – Glenn deleted or dissallowed my last comment and I have a policy of not commenting further when blogs do that – I consider it a waste. (By the way I respect you for not falling into the trap of deletion like gelen's blog, Thinking Matters and NZ Christian News).

    However, I think this intepretation is disingenious. Might I suggest that a proper analysis will consider subsection 4 as well as subsections 1 and 2. And that the different wording of subsection 2 be cosindered – in particular what the word "correction" means in this and similar acts (eg. education acts).

    I know – it's academic as very few interested people are looking at these details – more at the actual situation "on the ground". But such an analysis could be iunstructive. providing it is carried out objectively and isn't ideologically driven.

  • <span>"Mickey – that is a subjective comment. I am not hearing that assessment generally. Only from those who have an ideological committment to whip up unwarranted concern."</span>

    Ken,

    Speaking as a parent of young kids, who moves in circles with a lot of other couples with young kids, I can tell you for a fact that this is the primary issue for us, and we have actually felt the negative effects of the new law in ways that are not quantifiable in reports.

    If you want to talk about ideology, how about starting with the ideology which, without any sound objective justification, claims that allowing light smacking leads to a culture of violence and child abuse.

  • <span>"There is no evidence of criminalisation of parents."</span>

    Ken,

    It appears that you don't actually understand how <span>criminalization actually works.</span>

    If a law explicitly states that a certain act is illegal, then that act is a criminal act, and every person who engages in that act has been criminalized by the law.

    The new law explicitly states that smacking for the purpose of correction is a criminal act, therefore any parent who smacks for corrective purposes is automatically criminalized by the new law even if the police never even come to their house and investiage one single claim against them.

    You are right that there have been no prosecutions, SO FAR, but this is a different issue to criminalization, which occured the moment the Bradford bill was passed into law.

    Also, the fact that there have been no prosecutions so far is actually a red herring, because the real issue is that a law which sees the state imposing itself upon the family in this extrem way, without any just cause or sound philisophical reasoning to support it, is actually an unjust immposition of the state upon individual families – so while the law remains in its current form, families will remain at risk of zealous government agencies or legal authorities.

  • Ken, you have not the faintest idea what you are talking about. The issue is not that we are interpreting the law one way while John Key is interpreting it another. That is a fiction created by you. We are ALL – John Key included, interpreting the law in such a way that we realise that the law (not police, but the law) makes smacking for correction illegal. That is why Mr Key is saying that he is advising Police not to prosecute parents who do it.

    You don't ask police not to to prosecute people for doing something that's not illegal anyway – what a moot request that would be!

  • <span>Oh, another thing Ken: "<span> Glenn deleted or dissallowed my last comment."</span> 
     
    Liar. You know full well that I have don't no such thing. I bent over backwards so that you – who alone int he human race claims that he finds it technically difficult to post at my site. I removed spam filters, trialed a captcha device, and eventually fell back ont he very same basic wordpress filter that YOU use. We have discussed this in the past and you know full well that what you have said is false.
    </span>

    You are a liar, Ken.

  • Ken, I've got a lot of respect for your comments about science, but I'm getting more and more perplexed by your comments about law.  Your position ("Let's look at what actually happens") makes perfect sense, as far as it goes–but it misses the point that 1000 years of English law takes very seriously.

    Let me reverse the situation and see if it adds some clarity.  In the United States, "sodomy" is illegal in a number of states.  No American police officer has arrested anyone for "sodomy" since about 1984, as far as I can tell.  No court has convicted a homosexual couple of this offense in a long, long time.  Despite this, homosexual couples operate at a great disadvantage in legal proceedings.  A typical example is when a heterosexual marriage breaks up and one spouse forms a new homosexual relationship.   A lesbian mother or gay father has less of a chance of getting custody if "sodomy" is technically illegal.  The police may not enforce the law, but an aggrieved "ex" certainly will.

    Your position is, "Nobody gets hurt when the law makes something criminal but the government never enforces it."  My position is, "The rule of law is threatened by laws that CAN be enforced on a subjective or case by case basis."

  • So — make it a bright line! Make striking anyone of any age or relationship to you, no matter what is is called, a civl violation at least as serious as a traffic ticket in Moscow. Problem solved.  No one gets hurt phsyically or otherwise, since it is demonstrably fact that "good" parents certainly can and ofte do parent effectively without ever striking.  I am presuming there is no rampant problem of husbands unable to control their wives despite the fact not even "good" striking of them for correction is legal?

    (And then repeal those sodomy laws, along with overturning the unconsitutional provision in the Arkansas state constitution that says atheists not only aren't allowed to hold any civil service or political office but they can't even testify in court. . .)

  • Forgot to identify myself, new here from the US, following "Tapestry of Grace" comments, sorry.

  • Glenn – calm down. Maybe there is a misunderstanding.

    1: Re my "missing" comment. I apologise (again) if I got this wrong. I do have a sensitivity to being deleted at apologetics sites.

    The incident is subsequent to the inital problems (which you also implied I was not honest about). I was referring to my reply to your comment (August 12, 2009 at 9:57 pm) where you seemed to imply that you were closing off the discussion, anyway. (You said: "I don’t see much constructive purpose in continuing to re-visit the same issues with you, so I am just going to leave it there.").

    So maybe there is some other reason for my missing reply. I certianly think you had not appreciated Frank Wilczek's comment on the inadequacy of classical logic. It was an interesting concept and discussion worth pursuing. I was enjoying the discussion.

    So, again my apologies if I got this wroing. Perhaps you could acknowledge it, though, if your intention was to close the discussion.

  • Continued:

    2:I think the use of the word "correction" in subsection 2 is important – and hence the interpretation is important. It's worth teezing out the significance of this because its the subsection which you and your mates rely on in criticisng the law. (Please note – the average parent who is or isn't concerned about the law couldn't give a stuff about that clause. They are not aware of it. Just of the general interpretations people are presenting them with).

    I suspect a closer look at subsection 2 will actually bring up older arguments – eg. corporal punishement in schools.

    Subsection 4 does try the "avoid doubt", clarify the situation. Compalints should be prosecuted only when there is a "public interest in proceeding." the intention here seems to rule out light smacking, pretty normal in child rearing, from being considered an offense.

    I repeat – you guys are interpeting the law in a specific way to fit your ideological prejudices. That is why you avoid recognising the differnet meanins between two of the subsections (and ignore the 4th one). That is not an objective analysis.

    I freely acknowledge the wording could be confusing. That ideally it should be rewritten. But that would also be true for most laws on the books, currently. This is all recent history and there is no inidication that a compromise today woiuld be any better than on two years ago. Key is wise to avoid falling into that trap.

    But, noticably, those campainging on this act have been making bald and vague claims about parents being criminalised. the nonly cases they can bring up are ones they should be ashamed to support. They ignore the police reviews and goivernment assessment.

    As in all such cases – one should look at the evidence. Not go with ideologically driven claims.

  • Tapestry of Grace. You are wrong.
    My position is clearly not:
    <span>"Nobody gets hurt when the law makes something criminal but the government never enforces it."</span>

    Have you checked what the law actually says – and how it fits in with previous amendments to our education act? Or are you relying on the assertions made by opponents of the law here? If so, realise you could be misinformed because of their ideologically driven interpretations.

  • Ken, you are aware that <span>Tapestry of Grace</span> (TOG) holds a doctorate from Harvard Law School?

    TOG here is the law in question (in case you feel like taking a look and missed it when I posted it in full). (The same site will permit you to look up the Education Act as well – though I don't see how this Act is relevant – it is not part of the criminal code).

    "Correction," Ken, is the type of punishment that occurs after the fact. Consider, there is a house rule about not throwing balls inside, a child runs into the room with a ball. Mum says "don't throw the ball, you'll break somthing; remember the house rule." With a mischevious grin at Mum, the child throws the ball at Mum's ornament shelf, smashes the ornaments, then laughs and runs away. A smack in that context would be to punish the behaviour, it would be deemed corrective and would violate sub-section (2), <span> </span>"Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction"

    Now Mum could say oh, well, um, actually the smack was not so much about punishing the behviour as it was about preventing the child from throwing the ball inside in future in an attempt to match her actions to subsection (1) (c): "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—<span>(c)</span><span> </span>preventing the child from engaging or continuing to engage in offensive or disruptive behaviour;"

    But the legislators thought of that way out so Mum still gets caught by (3)"Subsection (2) prevails over subsection (1)." Where it appears that the reasonable force has a corrective element, even if one can argue it might also have a preventative one (3) makes the corrective element tip the act towards being an offence.

    So smacking is illegal.

  • <span>Ken, I'm not saying you're dishonest about whether or not you attempted to post. I'm saying you're dishonest for claiming as fact that I have deleted or disallowed your post, given our previous disucssion about this.
    </span>

  • Glenn – our previous discussion was about a previous occassion. I am specifically referring to our discussion of Frank Wilczek's statement about the inadequacies of classical logic. You appeared to want to stop the discussion and my susequent comment didn't get through. My assumption this was intentional may be completely wrong – but you haven't cleared that up.

  • Ken, stop thje ridiculous pretending of "maybe he did, maybe he didn. he didn't specifically state which is true." The accusation is always untrue. You stated that I did it. Nobody is stupid enough to think you might have seriously thought that I reversed my policy on censorship.

    But if that has inspired you to stay away from my blog, I won't lose sleep.

  • Just checked with a "test" message – which worked. I had wondered if you had closed of comments on that post. You aren't being clear about the specific discussion. But I am happy to think that I may have clicked the wrong button – and as I said I apologize if I was mistaken.

    But would you prefer I stay away? You always seem to be wanting to close off discussions.

  • <span>And I always seem to want to close off discussions? Can you say anything truthful about me at all? On one occassion I said I had no interest in discussing something further with you on account of simple factual errors and in my view an obvious lack of objectivity on your part. I never implied that the thread was closed, or that I had lost interest in the subject.  
     
    I see a clear pattern here, Ken. Why you even went on your little preach against me here is beyond me (don't object to that characterisation before reading your post for a refresher, when you said "<span> I respect you for not falling into the trap of deletion like gelen's blog,</span>." etc).  
     
    Back to the subject at hand and away fromt he jabs that you initiated…  
     
    You need to realise that there are not two competing interpretations of the law here. Do you see that the PM does not have a different interpretation of the law from me, but merely holds a different view on the extent to which the law should be enforced? This is particularly relevant in light of what he said when Bradford's law was first proposed. There, he commended the ammendment proposed by Chester Borrows, which is essentially the same as that of Boscawen. Key said:  </span>

    “the way you send a message is to make the law clear and precise and then to police it strongly and vigilantly. My colleague, Whanganui MP Chester Borrows, has put forward an amendment to Sue Bradford’s Bill that would do this. In my view, this is the correct response, and the one Parliament should adopt.”
    [bold text highlighted by Glenn Peoples]

  • Glenn – you quote Key. Isn't that what he did by playing a "key" role in the final legislation? His role helped to get an almost unanimous support for the legislation.

    You guys are pretty lose weith your "evidence" quoiting things out of context – and opportunistically. Key's position obviously developed durng the negotiations on the legisaltion – to pull old quotes out of the hat, opportunisticly, is hardly honest.

    I think part of the problem you and I have, Glenn , is that you get too emotional. Your are quick to dismiss my contributions without justified reason. And you do very often indicate that you are withdrwing.

    I can appreciate that once the discusion got onto quantum indeterminism you may have felt out of depth – don't we all. But I had indicated that there were inmportant issues in Plantinga's concept of warrant worth disucussing.You seemed to avoid that.

    But you didn't answer – would you prefer me not to comment on your blog?

    I really think you find proiper discussion impossible because your emotiuon leads to you arrogtantly dismissing other's contibutions out of hand.

  • <span><span>"Subsection 4 does try the "avoid doubt", clarify the situation. Compalints should be prosecuted only when there is a "public interest in proceeding." the intention here seems to rule out light smacking, pretty normal in child rearing, from being considered an offense."</span>  
     
    It says that police have discression not to prosecute – that is, if they find someone has broken the law, they can let them off with a warning.  
     
    That does *not* mean that they have not broken the law, or that what they done is not "<span>considered an offense"! If I break the speed limit, it is an offense regardless of whether I get a ticket or not.</span>  
     </span>
    In fact, it makes it crystal clear that it *is* an offense – police can't have discression to prosecute people who haven't broken the law.

    <span>The word "criminalised" clearly means different things to you and us. *You* mean "someone who has been convicted of a crime" – i.e. found to be criminal in a court of law. A better word for this is "convicted".  
     
    We mean "an action being against the law" – conviction doesn't change the fact that someone broke the law.  
     
    I suggest you use the word "convicted", as it is clearer.  
     
    I'm sure this has been said before, but I will repeat.  
     
    If Madeline finds one of her children has stolen something and takes them asside and smacks them once on the hand, this is not an offense called "smacking". It *is* however and offense called "assault".  
     
    Most people would therefore consider a smack to be a crimial offense (called "assault"). The fact that there is no offense called "smacking" (which is the rather bland statement made in the police report) is scareslely irrelevant, and simply being picky.  
     
    Now, the referendum question is potentially confusing if you wish it to be. But most people understand that the crime is "assault", and that assault is illegal.</span>

  • Ken, try to see this objectively. When the legislationw as first proposed, Key, as I showed with that quote from a couple of years ago, supported an ammendment by Chester Borrows. Mr Key's position then was that you shouldn't have a law that criminalises conduct but is unclear about when and how it will be applied. You should have clear legislation, then police it vigilantly. There's nothing out of context about pointing this out. That rhetorical trick of playing the "out of context" card doesn't work unless it's true. That was Key's position at the time.

    Now, two years later, another ammendment has been proposed which has exactly the same effect as Mr Borrows' ammendment. This time, Mr Key has flip flopped, and is quite happy for the law to be not vigilantly policed, and is quite happy for it to criminalise behaviour but for people to simpyl trust that it will – on his instruction – not actually be fully applied.

    There is nothing dishonest, out of context, or misleading about pointing this out.

    You can play the "emotion" card all you like when it starts looking like the facts don't stack up in your favour. There is nothing emotional about pointing these facts out to you. I'm afraid you'll have to set that trick card aside too, and simply address the issue at hand.

  • <span>You guys are pretty lose weith your "evidence" quoiting things out of context – and opportunistically. Key's position obviously developed durng the negotiations on the legisaltion – to pull old quotes out of the hat, opportunisticly, is hardly honest. </span>

    Hardly honest? How? Mr Key did say that, regardless whether his position has changed now.

    You're just trying to wriggle your way out because your arguments are weak. Please discuss your problem with Glenn somewhere else!

    It's appaling that you can't even distinguish between convicted, prosecuted, and criminalised. Even when someone with doctorate in law from Havard law school explained it to you!

  • What's with you guys? You ignore the fact that Key actually helped write the woring of the elgilation 2 years ago. It's not a matter of comparing something he said before that with soemthing he said last week.

    Echo – nothing you say helps change those facts.

    let's just see how the law works (although we have had 2 years to get a good idea. it's going to be the msot scrutinsed peice of legilsation and its application also.

    The results will surely tell us if there is any need for a change.

  • Ken – "<span>let's just see how the law works"</span>

    This is like talking to a brick wall…. How will we see how the law works when John Key is advising police not to enforce it? Why not start with what the law says, then ask whether or not it should say that?

  • I recognise the brick wall feeling, Glenn. It's because we interpret things differently. No matter how much you want me to think the same way as you – accept it is not going to happen. There is no point in continuing the circular discussion. These things happen. People are different. All part of the wonderful variation in our species. Just accept it and get on with life.

    The fact remains that the goernment will not countenance revisiting this in parliament again – unless there is evidence that parents are being criminalised – that parents are being prosecuted innapropriately.

    Whatever, the difficultultes with the wording of the current legislation (and these don't appear to have influenced the operation of the law) – we can understand parliament's position. There would be no guarantee that the action you are asking for would result in anything less ambiguous.  That is why the government refuses to concede to your demands – and won't revisit the legilsation until it is proven to be necessary.

  • <span><span>Ken, the reason that it goes around in circles is this: You already grant the facts that you are being presented with. You agree that Mr Key is advising police not to enforce the law fully. You agree that he is adising them not to prosecute, which only has meaning if they were able to prosecute. Given that you agree with all the salient facts, but you jump ship immediately before these facts reach their logical conclusion, I understand you wanting to not discuss it further. But the fact that following the facts to their conclusions will eman admitting an error is no reason to give up. What's so terrible about admitting a mistake?</span>  
     
    One more point of fact (which has been pointed out to you multiple times): "<span>The fact remains that the goernment will not countenance revisiting this in parliament again – unless there is evidence that parents are being criminalised – that parents are being prosecuted innapropriately."</span>  
     
    Ken, this point is not a matter of people seeing things differently. This is a simple matter of fact: being criminalised (i.e. made into a crime by the law), and being prosecuted (i.e. having charges pressed by the police) are different things. I understand that this is the slogan you strted with, but the facts dictate that you should change it. Again, this is not a matter of opinion, as much as you'd like to make it all subjective so that you can call it a matter of perspective. Your flae claims about my blog conduct, your false attribution of emotionalism to me, none of this has distracted fromt eh facts in question, and your claim that it's all just a matter of interpretation is not going to succeed either. Your steadfast refusal to deal with the publicly accessible facts (facts that you yourself accept!) is what is wrong with your position.
    </span>

  • Ken,

    <span>unless there is evidence that parents are being criminalised – that parents are being prosecuted innapropriately.  </span>

    The evidence is black and white written in the law. What more evidence do you want?

    And again, you can't see the difference between being prosecuted and being criminalised.

  • And Ken, no, the brick wall feeling is due to the fact you simply can not differentiate between being prosecuted and being criminalised.

  • No, Glenn. I won't bother pursueing this with you. Your last comment demonstrates your confusion and unhealthy willingness to attribute. So forget it.

    Madeleine – these sort of discussions seem to have a strong effect on blog traffic. Have you seen how MandM is shooting up in the sitemeter visits rankings (http://spreadsheets.google.com/pub?key=r7QHzRhQHjUaGUuXLMDAkyw&single=true&gid=2&output=html)?

  • Ken you are not wrong. MandM continues to shoot up the rankings. We've been steadily growing for over a year now and the growth shows no signs of levelling off.

  • <span>Ken, I think your personal complaints about me are ironic to say the least in light of what everyone has seen here, but suit yourself. I think the record is easily clear anough to enable the fair reader to judge whether or not what you say is true.
    </span>

  • By the way, isn't it also illegal for the Prime Minister to tell police to not follow the written law? I'm sure he doesn't have such authority?

  • Sid I am fairly sure you are correct. You'll be pleased to know that people are investigating that matter further.

  • Even if it's not illegal, he certainly lacks the power to insist that his instructions are followed. Muldoon found this out with the debacle over superannuation int he 70s.

    (Background: Robert Muldoon announced that a certain level of superannuation contributions should not be required any longer, but stated this without changing the law. A court found his instructions to be completely without force.)

    Bottom line: If you want the police to not view a certain act as a crime when the law says it is, change the actual law.

  • Do you REALLY want the police to stop using discretion? Or to open up that issue?  Every time someone swears/pushes someone out of the way when in a hurry/crosses the road in the wrong place/ and a miriad of other things they are technically breaking a law… but the police use discretion and do not arrest them… and it seems to work.  What is the problem with one more area falling under the same (working) policy?

  • Hi Max,

    <span>Do you REALLY want the police to stop using discretion? Every time someone swears/pushes someone out of the way when in a hurry/crosses the road in the wrong place/ and a miriad of other things they are technically breaking a law…</span>

    Not sure exactly what you mean and I'm not a law expert here but if someone committed a criminal act and there's enough evidence/witness to prosecute then I'd expect the police to act and enforce the law.

    In the case of crossing the road in the wrong place. People have been prosecuted over that. But correct me if I'm wrong, I think it is not criminal act.

  • <span> "if someone committed a criminal act and there's enough evidence/witness to prosecute then I'd expect the police to act and enforce the law"</span>

    OK… I don't!  What a wase of police resources and court resources that would be!  The police let people off with warnings all the time.  Do you REALLY want apolice force with the attitude that they MUST arrest every person for every offence everytime.  Just think for a while what that    would look like.

  • Max don't you see any significance in the fact that, unless the PM has misled us, the vast majority of people who commit the criminal act in question when it comes to the debacle over section 59 fit into the "criminal – but don't prosecute (wink wink)" category? When you have a law that covers most people just to pick out a few, something's wrong. When we recognise that there will be a few cases out of the many that will not warrent prosecution, maybe it's tolerable. But where a law criminalises the mojority just so the police have the ease of being able to pick and choose which of the many they will prosecute, and none of them will have any defense…. sorry, not in my country.

  • Hi Max,

    <span>OK… I don't!  What a wase of police resources and court resources that would be!  The police let people off with warnings all the time.  Do you REALLY want apolice force with the attitude that they MUST arrest every person for every offence everytime.  Just think for a while what that    would look like.</span>

    Firstly, I'd say that you wouldn't say such thing if you're the one on the receiving end of a crime.

    What's wasting resources to you might be something important to the victim of the crime, and they have the right to be protected according to the law.

    Like I said, I don't really know what the law really says about those examples you gave me. My comment was a general one, that if there is a crime committed, and there is sufficient evidence, then I would expect the police to act and enforce the law.

    And how can you say that the police and court are wasting their resources and time to enforce the law? Isn't that the reason of their existance?

  • <span><span>Do you REALLY want apolice force with the attitude that they MUST arrest every person for every offence everytime.</span></span>

    For criminal offence? Yes, absolutely. I don't think all offence are criminal offence. Parking in the wrong spot is illegal and offensive, but it is not a criminal offence (I think). You'd get fined, but you wouldn't see it on your criminal record.

  • OK Sid.   I see your point of view.  We just have different views about how much discretion the police should have when carrying out their job.  I think that your vision would lead to a very officious police force – I would like to see them as humans rather than law enforcing automatons with no ability to make judgement calls.  So we differ.  Anyone else got an opinion?

  • I think the police pick and choose in many other cases – even to the point of ignoring the majority of 'offenders'.  For instance in Dunedin the police COULD arrest thousands of students each night for being drunk and disorderly.  Any student stumbling around on the road, swearing, etc etc COULD be arrested.  But the police don't arrest them all.  If some drunkard is a real threat or danger they have the law that allows them to do so however.  But some people see this as a bad way to set up laws.  What is the alernative?  Should we get rid of laws concerning drunken behaviour because MOST of the time the police will not arrest them?  Or should we follow Sid's advise and build thousands of jail cells so the police can go out in squads and round up thousands of people each Saturday night.  I doubt Dunedin has a big enough police force – but according to Sid this is what the police MUST do!  I know which one sounds like a police state to me.  I am relieved that the police are given the ability to think for themselves in many instances.

  • The police should and do use discretion. If every infraction of the law was prosecuted it would clog the court systems and be ridiculous. However, the Prime Minister instructing the police as to the parameters of the discretion they exercise is a very different thing indeed to the police independantly exercising discretion.

    If the Prime Minister does not want something to be prosecuted then instead of interfering with the operation of the police, which should be independant to the Prime Minsisters office, he should change the law.

  • As to why I think the police should use discretion, I think this because there is more that one law on the books that if enforced to the letter of the law would be draconian.

    This tells us something about the laws in New Zealand. There is more than one law on the books that is badly drafted.

    Is this an excuse or justification for not fixing poorly drafted legislation? NO

    Laws should not catch a ridiculous number of citizens. The vast majority of people should be able to obey the law with minimal impact or stress to their lives. When laws catch more than the majority we hope that the police will exercise discretion as clearly such laws, applied as written, are unjust.

    The moral of this is not that the police should go on exercising discretion but that those who write the laws should take more care and should fix the laws that overearch when they are made aware of their existence.

  • I think Madeleine the true moral of the story is not about legislators 'trying harder' but about the disadvantage of legislated criminal law compared to uncodified common law, private property rights and private enterprise for dealing with the conflicts and problems in life. For example, consider what laws are making criminal offenders out of the average person: speeding. This is a product of legislated criminal law (legal socialism) and government roads (industrial socialism). If the roads were privatised, and the driving laws repealed, then it would be a matter of civil wrongs to disobey road rules, and it would be up to private road operators discretion, not police discretion, in dealing with it.

  • So now the police are setting up cameras to catch illegal parkings. Who would have thought 10-20 years ago that you could be fined to park illegally for 1 minute here and there?

    For those who thinks that the smacking law is going to be hard to enforce, think again! All they need to do is just to place cameras in few public places.

    The law enforcer will catch up and deal with everyone who breaks the written law.