Home > children, politics > >Disregarding the rule of law

>Disregarding the rule of law

>Since 1961 until recently the law in New Zealand stated that parents could use physical discipline for the purpose of correction but it was illegal to assault a child. The law was both intrinsically reasonable, clear in its intent, and effective in court. In 2007 the law was modified at the behest of a politician who has a philosophical opposition to the use of corporal punishment.

There was significant citizen opposition to changing the law at the time.

The new law is regarded a shambles. Persons on both sides of the debate have variably stated that it allows and forbids smacking children. Some have even claimed that it forbids using non-physical discipline on a child. And legal scholars have stated that the wording is a mess.

This is not clear legislation. In creating this law, Parliament abandoned its constitutional responsibility to say with clarity just which conduct is criminal.

Here is the wording of the law.

In response to the new law there was a referendum to which the vast majority (88%) of New Zealanders (who responded) voted that: A smack as part of good parental correction should not be a criminal offence.

The current government claimed to oppose the law when it was enacted 2 years ago. They were not in power at the time. Their response to the recent referendum is to say that the current law is working and there is no need to change it. They have also suggested that they will reinforce to the police not to prosecute minor infractions of the law.

I am not certain one can say the law is working when over 200 people have been investigated by the police for smacking since the law came into place (~2 years). And it hasn’t prevented 15 children from being murdered. (The population of the country is 4 million.)

Telling the populace that the police will not prosecute them even though the law states their behaviour is criminal is a request from the state for us to trust them. But a request for trust can only be made by someone that has proven themselves trustworthy. The refusal to change the law despite saying that they didn’t like the original law, despite the fact that the vast majority of New Zealanders want it changed, and despite the fact they are asking the police to disregard the law; proves they are not worthy of the trust they are asking for.

However the major problem here is not about parents being able to physically discipline their children for corrective purposes, as important as that is. What is incredibly pernicious is the idea that actions should be criminalised while the investigators of such actions are told to ignore these actions. Such thinking is stunningly foolish for any person, and malevolent for a politician. It utterly disregards the rule of law. It resembles the monarchy of a vacillating king; where men are praised or condemned at his whim.

The government needs to decide what behaviour they consider criminal and make the law clear. Unclear law where people are uncertain whether or not their behaviour breaks the law, and law that criminalises people but denies it will prosecute them (most of the time), are both unacceptable.

Some may claim that the police often use their discretion in prosecuting crime. This is true. There are several reasons why this may be the case.

  • A crime is identified but there is insignificant evidence against the perpetrator.
  • The criminal has committed several crimes and the police want to concentrate initially on the most severe.
  • Delay is being used to identify further perpetrators.
  • Police lack staff to adequately investigate all crimes so choose to focus on what they consider the most important.

The difference in the above examples are that decisions are being made based on what is possible, or practical. It is not the choice to deliberately ignore criminal behaviour.

This kind of approach to law could eventually lead to all citizens being guilty of criminal behaviour and the state arbitrarily prosecuting individuals it finds inconvenient.


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Categories: children, politics
  1. Ken
    2009 August 28 at 04:36

    Some inaccuracies here:
    1: How could 88% of NZers support the No vote when only 54% of registered voters participated?
    2: The current government did not promise to oppose the law – they voted for it! The parliamentary vote was almost unanimous. Mr Key contributed to the final wording of the legislation.
    3: The police are clear that smacking is not an offence and this law has not lead to any significant changes in their work. You can download their latest report at “Smacking not an offence”
    4: Clearly parents are not being criminalised by the law. But there is an ideological campaign on the part of conservative Christians to convince them that they are. Despite the complete lack of evidence for this.

  2. 2009 August 28 at 10:36

    1. Post modified.
    2. Yes, but initially they opposed it, and offered support for it if an amendment was accepted. If the bill had of been pulled for lack of support, National wouldn’t have introduced their own bill. But my point is that though they gave the impression to the public they opposed it back then. How much they did oppose it is uncertain.
    3. Your link does not say what you are implying. The police are not saying smacking for correction is legal for parents. Further, the police are enforcers of law, not arbiters of it.
    But the law is not clear. When several authorities say different things who are we to believe. And if the law is unclear, why the reluctancy to enact clear law?
    For the politicians and police to claim the law is working while the populace is saying, “We don’t know what is acceptable and unacceptable behaviour,” means little. The law is for the people, it should be clear.
    4. Irrelevant if no one is certain what the law means, this could change. And there are several reports of people being hassled over minor smacking.
    If police or CYPS speak firmly to families, or tell them not to smack in the future, but do not lay charges; and then say no one is being criminalised is just two faced.

  3. 2009 August 28 at 15:49

    Two comments. First, the law does seem a bit ambiguous because of the 2 subsection. All of the points in subsection one could be defined as “correction”, yet subsection 2 excludes correction. That section needs to be more properly defined.
    The other thing is that there is a 5th reason to allow officers to use discretion. Sometimes it is not entirely possible to define all aspects of what constitutes an offense and what does not. This exists in the pornography issue, where the law is having trouble defining exactly what constitutes porn, but everyone knows it when they see it.
    I think this is the kind of discretion that is being asked for here. A law defining when it is right to smack a child and when it is wrong cannot consider every contingency, and thus there is a call for police officers to use their own discretion. It is difficult to define what is child abuse, but, people know it when they see it.

  4. 2009 August 28 at 17:14

    It is difficult to define what is child abuse, but, people know it when they see it.
    That’s why you need a bright line test like actual serious physical or mental damage.

  5. 2009 August 29 at 01:53

    jc_freak, the law as it existed was fine. People were being charged with child abuse when appropriate. The sponsor of this bill has stated that she is ideologically opposed to corporeal punishment in any form.
    Yes, there may be more than 4 or 5 reasons, I just gave some that I thought of. But this is generic to policing in general, and shouldn’t be included in specific acts such as this. Other crimes have similar contingencies but the comment to police to show discretion is not included acts covering those situations.

    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.

    So we want you to know you are a criminal, but an inconsequential one.
    I think it is inappropriate for the state to have laws that they don’t intend on punishing, and even worse for them to punish at a whim. If you can think of counter-examples I would be interested in them
    Further, the issue here is not everyone knows when smacking is wrong. Yes, punching a child in the face and breaking their jaw for getting out of bed when told not to may be agreed by most to constitute abuse. But there are many who would claim that a slap on the hand for lying is also abuse.
    Mike TThat’s why you need a bright line test like actual serious physical or mental damage.
    Exactly.

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