Wednesday, June 24, 2009

The Crimes (Substituted Section 59) Amendment Act

So the referendum is about to commence and no doubt the usual antics will be displayed. Personally I don't find the question that misleading (sorry Mr Prime Minister) as everyone knows it's a vote for or against Sue Bradford as much as the compulsory superannuation referendum in 1997 was a vote against Winston Peters. I doubt the result will be the same this time though (93% against the idea in 1997).


But what is the issue all about? For me it's about the State leaving parents alone and getting out of our households. I mean a smack is neither here nor there in terms of a corrective tool. No, it's not about that for me, I've never smacked my daughter. But there are plenty of daughters, and sons, in Aotearoa who need a good smacking every now and again.


But the more I look at the new section 59 (below) the more I find the whole issue utterly ridiculous bacause under subclauses (a) to (d) a smack is permitted in three occasions of preventative behaviour and one occasion of normal behaviour incidental to parenting, which subsection (2) instructs us is not a smack for corrective purposes.

At the end of the day a smack for correction is prohibited but a smack for prevention is permitted. If a child constantly plays up then that child can be smacked under subsection (c) as long as parents tell the child "that is to prevent you behaving like that again", rather than "that is to correct you for behaving like that".

The question therefore is concerned with changing the word "prevention" to another word "correction" and deleting subsection (2).

The difference is not worth $9 million bucks, and I'm still voting "No".

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.



7 comments:

Anonymous said...

Agree 100% for me this has always been about getting the STATE outta my house and leaving me to raise my children the STATE has planty of other problems and really bad parents to sort out before it even thinks about hounding and harrasing the good parents

But then thats why most pollies are all about They go after the soft targets Their cowards and wimps when it come to going after the bad parents and bad citizens

gd

Peter said...

Sue Bradford said that the anti-smacking law was intended to "send a message" to New Zealand parents. Now we have a chance to send our own message to Sue Bradford, let's use it.

Alan said...

What a wanker John Key is when he says he will not take any action
to change the law even if the referendum is for it. I have lost
complete faith in him and his
government. I transfer my allegiance to Act from now on.;

Anonymous said...

The biggest irony being that Sue Bradford is not an elected MP, is part of a hard-left fringe party, yet thinks she should have more say than the majority. National are a disgrace with their leftist, blatantly weak attitude, every year our so call democracy is corroded and crushed, the left is pandered to and the media view is all but worshipped. Nanny State rolls on in all its bossiness and dishonesty, Key-In, Phil-In, Sue In, and the majority view ignored. Last time I bother to vote.

Psycho Milt said...

At the end of the day a smack for correction is prohibited but a smack for prevention is permitted.

It'd be interesting to see some case law around this. My reading of it is that a smack is pretty much always a crime because it's not "preventative," except in that much-used example of smacking a child's hand away from a stove element or fire. Anything else, including "that is to prevent you behaving like that again" (ie, because there's plenty more where that came from), seems to me to meet a reasonable definition of "correction."

Thanks Sue, great to have that all sorted out so clearly...

Gooner said...

Milt, the best case law that might come out in my view would be based on subsection (4). Usually the police have a discretion whether or not to prosecute and this discretion is entirely up to them: it is not based in legislation but rather is simply an option they have. But now we have a legislative requirement to use discretion where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution .

I reckon this leaves the police decision to prosecute open to challenge by way of judicial review. I'd love for a lawyer to try it on.

Mr Dennis said...

We're collating a nice collection of the nonsense the anti-smacking lobby is saying over at the Yes Vote FAIL blog, it's not hard to find...