The 2007 law change prohibiting parents from hitting their children is being quoted as an example of frustration of the popular will by Parliament. But was it?

I see it said quite often nowadays that the law forbidding parents from hitting their children was passed against the popular will. The latest  is from a commenter on Monday’s post on Pundit from Dame Anne Salmond. I don’t see it that way.

In 2007, Parliament amended S59 of the Crimes Act 1961 to no longer permit parents to strike their children. The old law had been specifically intended and used to provide parents with a defence against a charge of assault. Public argument for and against the law change had been heated and prolonged. Now, looking back, the fact of the change is being used in some public policy writing as an example of government frustration of the popular will. How true is this? Some evidence is as follows.

The passage through Parliament: When the amendment Bill came before Parliament it was passed at its first reading by 63 votes to 54. At the select committee stage, 1718 written submissions were received, 247 from organisations and 1471 from individuals. A majority of the submissions from organisations were in favour of amendment. A majority of individual submissions were against. At the final stage of its passage through Parliament, the Bill was passed with an overwhelming majority of 113 to 8. Parliament does not necessarily reflect the popular will but MPs are foolish to ignore it and rely on repeated focus groups and their own party polls to supplement their understanding of what it is.  

The 2009 referendum: In August, 2009 a New Zealand-wide citizen-initiated referendum was held on the question, “Should a smack as part of good parental correction be a criminal offence in New Zealand?” The question was a leading question, ambiguous, and only obliquely related to the law change, casting doubt on the validity of the result. Did a ‘Yes’ answer mean a smack should be a criminal offence or that good parental correction should be? What response should be given if the respondent didn’t believe a smack was “part of good parental correction”?

The doubts about the validity of any outcome led to a public movement to boycott the referendum, initially supported by some members of the Green Party. In the event, 44% of eligible voters did not vote. Of those who voted, 87% said no and 12% yes. It is primarily on these statistics that the belief is based that the passage of the law is an example of frustration of the popular will. But, even if all those who voted ‘No’ meant that they opposed the law change that is 49% of eligible voters. Because of the ambiguity of the question and its lack of a direct relationship to the S59 amendment, many of these people might not have been opposed to the law change.       

The 2009 street rally: In November 2009, on a mild spring day up to 5, 000 people marched up Auckland’s main street in a protest against the 2007 law change. Mr Craig, an Auckland businessman and leader of the march had spent an estimated $500,000 on a marketing campaign that included daily coloured full-page advertisements in Auckland’s main newspaper, advertisements in other papers and magazines, television advertisements, billboards and free buses. The rally had something of a carnival atmosphere and an unknown number of the participants carried signs supporting other causes or lampooning Mr Craig.

It is difficult to call such a rally either a success or a failure although Mr Craig had said he was expecting many more to be there. In any event, it was hardly a popular endorsement of the call for repeal of the new law in a city of a million people.

The 2008 UMR survey: A 2008 UMR survey found 43% of respondents supported the law change  and 28% opposed it.

Conclusion: It would appear that New Zealanders have been and continue to be roughly equally divided between supporters and opponents of the amendment to S59 of the Crimes Act 1961. If anything, supporters are in a majority. The belief that the passage of the law is an example of frustration of the popular will is unjustified.    

Comments (16)

by stuart munro on May 27, 2013
stuart munro

It depends on the weight you give the various measures. The sample size of the UMR survey, 750 respondents, is not comparable to the referendum. Allowing a substantial margin for the leading question still leaves the referendum giving a clear,if not a determinate indication.

Passage through parliament means nowt: the wildly unpopular asset sales were foisted on us by a corrupt cohort of MPs against a large and consistent set of indicators showing that there was no public support, and no economic rationale. You need a better claim of validation than the endorsement by the dregs and sweepings that conspire to run New Zealand's parliament backward into full blown despotism.

by Ian Hassall on May 27, 2013
Ian Hassall

Stuart: Your points are well made. I admit I'm partisan on this issue. But I don't think it is a good example of parliamentary frustration of the popular will (whatever that is).

by Steve on May 27, 2013
Steve

The participation in the referendum on the undemocratic anti-smacking law was an overwhelming 56%. Compare that with local body elections which have less than 50% turn out, and the initial referendum on MMP in 1992, which had a lower turnout than the anti-smacking referendum. The opposition to the unjust law change, was greater than that used to change our voting system! The 87% who voted aganist the law in the referendum, was a similar result to polls conducted at the time, and since, showing a huge opposition to the law change.

The tragedy is that there is more child abuse in New Zealand today than before the unnecessary law was introduced. It is a real shame that instead of our politicians turning good parents into criminals, they could have been dealing with the real causes of real child abuse.

by william blake on May 27, 2013
william blake

Ian, as you point out, the bill was designed to take away the defence, in court, of some grievous harm to children. Children disciplined with the proverbial 4 x 2 and much, much worse.

The split in support of S59 is a function of confusion between this intent and a parents genuine concern for safe keeping of their children through responsible and loving discipline.

In this instance the popular will, the half opposed to the bill, so not really popular, is aligned with ignorance.  

by mudfish on May 27, 2013
mudfish

Remind me again (Steve maybe), since 2007, just how many parents have been charged with a criminal offence for smacking their children as part of good parental correction?

by Andrew Geddis on May 27, 2013
Andrew Geddis

@Steve,

The tragedy is that there is more child abuse in New Zealand today than before the unnecessary law was introduced.

I think this claim might require a citation before being accepted.

by Ian Hassall on May 28, 2013
Ian Hassall

@Steve

The Police were required under the 2007 Act to review every 6 months action taken in relation to notification of assaults on children. Their reports are published here. The 11th report published in April this year records 355 events of which 142 were prosecuted. The number of events is fewer than in the previous 6-month periods. A number of actions were taken including referral to community agencies for parenting assistance. The concern about excessive or unnecessary intrusion into family life doesn’t seem to have been realised.

 

Getting an accurate picture of whether abuse of children is increasing or decreasing is difficult. Statistics on hospital admissions, cases notified to CYPS and substantiated by them and Police notifications and prosecutions are all subject to considerable fluctuation according to levels of public interest and official policy. Homicide rates are perhaps the most reliable of statistics and although New Zealand compares badly with many other countries in this respect there doesn’t seem to be an upward trend.   

 

 

by Graeme Edgeler on May 30, 2013
Graeme Edgeler

The tragedy is that there is more child abuse in New Zealand today than before the unnecessary law was introduced.

I think this claim might require a citation before being accepted.

Almost by definition. Smacking is now legally recognised as child abuse. It wasn't before.

by Andrew Geddis on May 30, 2013
Andrew Geddis

Almost by definition. Smacking is now legally recognised as child abuse. It wasn't before.

Not, I suspect, the point Steve was seeking to make!

by Ross on May 30, 2013
Ross

The 2007 law change prohibiting parents from hitting their children...

My understanding of the law is that parents can indeed use reasonable force in specific circumstances. The law states:

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.
by James Green on May 30, 2013
James Green

@Stuart

The sample size of the UMR survey, 750 respondents, is not comparable to the referendum.

Arguing on the sample size is wrong. What matters is how the sample is selected, how the question asked. Referenda are self-selected, so are more biased in their answer that a random sample. The UMR questions are clearly less ambiguous than the referendum question. In short, the UMR result should be closer to the truth.

by stuart munro on June 01, 2013
stuart munro

@ James, as sample size approaches totality, selection error decreases to zero.

With approximately half the voting population the referendum, though imperfect, is much more credible than the UMR survey.

by Ian Hassall on June 02, 2013
Ian Hassall

@Ross

Reasonable force is permitted in certain specified circumstances under the 2007 Amendment as you say. It is interesting how people have interpreted this. Some have understood it to mean that the child may be hit in order to prevent him from endangering himself or other people, etc. Others have not. It is, after all, possible to restrain a child rather than hit her. Hitting in order to 'teach' her not to endanger herself might be considered to infringe:

 'Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.'

I tried to persuade some people at the time the Bill was under consideration to introduce the term 'restraint' as a permitted parental behaviour rather than the ambiguous 'reasonable force' but was over-ruled by legal experts. A pity! 

by Steve F on June 02, 2013
Steve F

@ Steve. ( and anybody else who happens to fall on the same side of the great anit smacking divide)

I'm not a lawyer but I like to think I have a reasonable understanding of English.

Read the following and tell me what the problem is;

 

 

Powers of discipline59Parental 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.

    Section 59: substituted, on 21 June 2007, by section 5 of the Crimes (Substituted Section 59) Amendment Act 2007 (2007 No 18).

by stuart munro on June 04, 2013
stuart munro

@ Steve F  - hardly an outstanding example of clarity and candour. I hope Jon Lovett is onto something:

Up until recently, I would have said that the only proper response to our culture of BS is cynicism; that it would just get worse and worse. But I don't believe that any more, and I think this matters for what comes next for you. I think we may have reached a critical turning point.

I'm going to say that word one last time. I believe we may have reached "peak bullshit." And that increasingly, those who push back against the noise and nonsense; those who refuse to accept the untruths of politics and commerce and entertainment and government will be rewarded.

by dave on June 07, 2013
dave

<i> the bill was designed to take away the defence, in court, of some grievous harm to children.</i>

No it wasn't. It was designed to make *all* smacking of kids unlawful, which of course would take away a defence which was hardly ever successfully used in court. In fact more people have been charged for light smacking of kids since the law change than those who sucessfully utilised the removed defence in a comparable period.

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