S59: Was the popular will thwarted?

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.