Having experienced various forms of smacking, gymshoe, cane, ruler on hand, I cannot see why folk get so upset about smacking. The smack confirms that one has done something wrong and gets it over with instead of a festering confinement or other non-smacking punishment. A sensible law could limit it to the use of the hand on the backside of the child and outlaw the abuse, to make it easier for juries to convict the abusers, permit school headmasters or delegated person if a headmistress [etc] to discipline troublemakers for the betterment of all.

I did see them, that’s why I commented. I do not think you accurately convey the effect of the amendment and of the law as it stands. The carrying of the child from the road is an example of s 59(1)(a) in action. The smack is not. The harm – e.g. the child being hit by a car – has been prevented by carrying them from the road (so paragraph (a) works there).

Is a smack so a child will learn not to run onto the road again any different from one so they will learn not to hit their sister, or learn not to smoke cigarettes?

Smacking for the purpose of prevention has a defence under subs 1-3. See my two examples above.

To be generous to Baldock and Bradford

Baldock: there is now no defence to smacking for the purpose of correction.

Bradford: smacking was always illegal, there just used to be a defense for more of it than there is now.

I think both arguments are a bit bogus :)

The actual text of section 167 of the Crimes Act (murder) can be found here – it does not actually ban shooting people.

Smacking is illegal. The Crimes Act makes it illegal. Section 59 of the Crimes Act cannot be used as a defence by parents who smacks their children.

Section 59(1)(a) ~ (c) are in there because people were raising arguments that it would now be illegal to pick up your child and carry them away from the road onto they which were about to walk (picking up is force, as contained in the definition of assault, etc.). To get rid of those arguments this change was made. But to make absolutely clear that smacking and other forms of corporal punishment would be illegal we have 59(2) and 59(3).

As opposed to Baldock saying there is now no defence or Bradford saying it was always illegal.

I have many problems with the new s59, but 1 and 2 being contradictory is not one of them :)

Sub sections 1 and 2 are contradictory

How? As far as I see, the distinction between the catch-all in s1(d) and the qualifier in s2 simply enshrine in law the judgement that corporal punishment for corrective purposes cannot be “incidental to good care and parenting”.

The two sections are only contradictory if you don’t accept that judgement. The vast majority of NZ’s elected representatives either evidently did; it’s not like this act squeaked through by a couple of votes.

L

The referendum question simply wants to change one word – “prevention” to “correction”, ( as well as deleting subclause (2)). I’m probably still gonna vote “No” but will listen more clearly to the arguments closer to the time cos dollars to donuts the bullshit will certainly fly, on both sides!

The way I imagine it is if you smack a child and say “stop that!” it’s prevention, if you smack them and say “don’t do that again!” it’s correction. That’s not a legal definition, but it kinda gives the flavour of the distinction. The example I gave up thread is an interesting example of prevention of repetition.

I think the law worked very well before Bradford et al stuffed with it.

Do you really think the old law worked? I thought everyone (including Family First, Baldock etc) believes it was causing confusion and that juries were having problems with it. The difference of opinion is what it should be replaced with – largely over whether physical discipline for the purpose of correction should be in or out.

I think it’s more confusing now than it was before. And my opening paragraphs highlight that. Don’t they?

I don’t like the new law either, but I also believe that lots of people are wrong about what it actually says (e.g. they think it outlaws smacking) and that confusion is being propagated as a deliberate tactic by the pro-physical-discipline-for-correction lobby.

So when you smack your child you tell him/her “this is for prevention of your disruptive behaviour and is not to correct it”. But surely if the disruptive behaviour has already occurred you cannot prevent it, you can only correct what has happened. Mea culpa on the difference (if there is one).

When should the state get to set the parameters within which parents can act, and when shouldn’t it?

Of course all those examples are repugnant. And I am not one who would ever argue that parents own their children, like some medieval law. I think the law worked very well before Bradford et al stuffed with it. I think it’s more confusing now than it was before. And my opening paragraphs highlight that. Don’t they?

You seem to have read 59(1)d but ignored 59(1)a-c – they permit physical force for the prevention (and minimisation) or harm, criminal conduct, and offensive and disruptive behaviour. As my example above shows, 59(1)a appears to permit smacking in a number of scenarios.

Your argument:

The only people who know what children are really like are the children’s parents. They should be trusted and be able to judge what discipline is best for their children, not the State. After all, the parents deal with them every day.

appears to mean that the State should have no say over how parents act toward their children. Do you think parents should be able to amputate their children’s arms, or mutilate their daughters’ genitals, or put out their toddlers’ eyes if they believe it is best for their children? I assume not, so where are you drawing the line? When should the state get to set the parameters within which parents can act, and when shouldn’t it?

The law allows parents to use physical force against their children if it’s “for the purpose of performing the normal daily tasks that are incidental to good care and parenting”. Yet, the law goes on to say that nothing “justifies the use of force for the purpose of correction”.

Simple plan English interpretes all this to mean that use of force for purpose of correction is not a normal daily task incidental to good care and parenting and is therefore illegal. Yet surely the prevalence of physical discipline in homes over hundreds of years, in contrast to the relatively few court cases in which parents have been convicted for having used it, is anecdotal evidence of its legitimacy. Until now.

You see, the amendment act agreed to by National in 2007 also said this, as pointed out above: “Nothing in…any rule of common law justifies the use of force for the purpose of correction.”

The law change not only removed the section 59 defence, it also took with it the hundreds of years of common law that always held that parents could use reasonable force to discipline their children.

The only people who know what children are really like are the children’s parents. They should be trusted and be able to judge what discipline is best for their children, not the State. After all, the parents deal with them every day.

That is my underlying objection to the removal of section 59: the nanny-state-knows-best attitude that is pervading and destroying our society and our country.

The same word is used in the second passage, where it is combined with a second word nakah meaning to smite, defeat or kill. Obviously the first meaning of this word is used by “pro-smackers” but the second is far commoner and makes more sense. Defeating rebelliousness by exercising parental authority makes much better sense than beating your child with a stick.

I have no doubt in my mind that these are the proper interpretations of these passages. There is not a single recorded incidence of a parent beating his child in the bible. To give these passages that meaning is completely out of kilter with the rest of the bible. This usually denotes a poor interpretation.

As for your wider point about the political context when the law was passed – I *still* don’t remember the bit in the Bible where Jesus told everyone to physically punish their kids.

Nor I :)

I have, however, run across huge amounts of literature which does purport to show the bits of the Bible which do not only permit physical punishment but actually require it. Proverbs 13:24 and 23:13-14 are usually the first ones cited.

There’s some really interesting writing about conservative Protestant parenting manuals and how they join the dots too. In general they describe physical discipline as a necessary part of good parenting.

To borrow an example I wrote on The Hand Mirror:

A 2 year old leaves his mum and 4 year old sister on the footpath and walks onto the road. Mum grabs him and pulls him back and goes back to putting the 6 month old into the car. The 2 year old trundles off onto the road again, mum grabs his arm and pulls him roughly back. Third time he tries mum grabs his hand, pulls him back and smacks him on his nappied behind to give him a fright and sit him down but not hard enough to do damage or leave marks.

There is a very good chance that smack is protected by 59(1)A, mum smacked the toddler to stop him walking out into the traffic again.

Similarly the classic example of smacking a child’s hand away from a fire/heater/element – the smack is to prevent harm not to correct.

Yes, the current law doesn’t ban smacking explicitly – but it does totally ban the use of force for correction (punishment) which smacking surely comes under.

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

There is no possible legal defense if the police decide to prosecute and they can prove to a jury or judge that you hit your child, unlike in the old days where you could get caught up in discussions of “reasonable force” and the like.

I’m not just some wingnut with my own special view of the law, pretty well everyone else also believes that the law bans smacking.

Here’s an example from the Children’s Commissioner:

“In repealing section 59 of the Crimes Act, New Zealand has achieved compliance with the 2003 UN Committee recommendation that New Zealand amend legislation to prohibit corporal punishment in the home.”

(From: http://www.occ.org.nz/__data/assets/pdf_file/0008/5669/OCC_UMR-Research_141108.pdf )

As for your wider point about the political context when the law was passed – I *still* don’t remember the bit in the Bible where Jesus told everyone to physically punish their kids.