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Jim Evans Decisively Smacks John Roughan

Madeleine — Wed, 05 Aug 2009 20:06:00 +0000

On Saturday the NZ Herald’s John Roughan demonstrated why journalists should not engage in legal interpretation in his widely criticised piece on the smacking referendum, “Sinister undertones to referendum instigator.”

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.”

I encourage you to read both articles, especially if you have not voted yet and you are confused by all the contradictory claims being made by both sides. I have included the piece of legislation under scrutiny as a term of reference below.

Crimes (Substituted Section 59) Amendment Act 2007 No 18, Public Act

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Section 59 is repealed and the following section substituted: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.”

Don’t forget to vote in the smacking referendum – mail your papers back by August 20.

One More Sleep: Over and Out

Madeleine — Mon, 08 Dec 2008 07:15:00 +0000

This is my last post before Cervical Arthroplasty surgery tomorrow to remove two discs in my neck and replace them with artificial metal ones. My surgeon says it is a straight-forward procedure and there is nothing to worry about; he also said “We make an incision in the front of your neck and we cut the damaged discs away from your spinal cord, possible side effects include death, nerve damage and paralysis.” Easy for him to say don’t worry.

Whilst I am not looking forward to tomorrow at all I am looking forward to the hope that by this time tomorrow the corner will have been turned on the pain, the drugs and all the hassles I have lived with since my car accident back in March; I will finally be able to begin moving forward.

Going on the log flume ride at Rainbow’s end last week and being struck with pain and feeling like bone was scraping on bone in my neck, as the boat jerked after the ride pulled it up to the next level (I was fine on the slides), reinforced that I have to do this; the log flume ride is hardly adventurous and yet when I got off it I was shaken, I had an instant headache and my neck was mad at me.

I do not know when I will be up to blogging again, it will all depend on the success of the surgery and my pain levels post-op. I do intend to take the laptop with me into hospital but it has no internet connection and who knows if I will be able to type or think – mostly I am taking it to be able to watch DVD’s.

I do not know how much blogging Matt will be able to do since I won’t be able to edit his posts (he has a typing impairment) and he will be holding the fort at home but rest assured we will be back.

On Going Blonde for a Date

Madeleine — Mon, 20 Oct 2008 00:58:00 +0000

I finally got a date for my impending cervical disc replacement surgery:

9 December 2008.

I promptly changed my hair and went blonde – its one thing I get to control I guess.

And no, I won’t be arguing the case for the rationality of changing one’s hair when faced with life changing events!

Did Not Make It

Matt — Mon, 13 Oct 2008 00:14:00 +0000

In the last post I noted our intention to attend the ACT party launch on Sunday.

We would love to have posted a review of what we saw today, however, unfortunately we never made it. Madeleine has, it appears, had an adverse reaction to the pain meds she has been on since her car accident. As a result, she was admitted to hospital on Saturday night.

It is not serious, but she is still undergoing tests so we can figure out exactly what occurred.

Hopefully she will be back up blogging soon.

UPDATE WEDNESDAY:
Madeleine is back home today, one more test to run as an outpatient – hopefully her surgery will happen soon so she can get off the pain drugs.