Putting the referendum in context

Firstly, a couple of facts:
  • This is Sheryl Savill’s petition not Larry Baldock’s. Savill, a staff member at Focus on the Family‘s New Zealand organisation put this forward before Baldock jumped on the referendum bandwagon.
  • MPs from a other parties, including National (Bob Simcock) and NZ First (Brian Donnelly and Barbara Stewart), had placed bills to either repeal or amend s59 in the ballot in the past, they were just less lucky than Sue Bradford.
  • The bill received support from both sides of the house throughout the debate.
  • The bill was eventually passed 113 to 8 – it was supported by a massive majority of MPs
  • The actual text of the new s59 can be found here – it does not actually ban smacking

Secondly, in case any of you are interested in a much more wordy context I have attached, below the fold, a slightly updated piece I wrote for a different purpose earlier this year. It was written to follow on from a summary of the international context, if anyone’s really keen I can post that too :)

The bill, put forward by the Green Party’s Sue Bradford, was the culmination of decades of effort by campaigners for children’s rights (Wood, Hassall, & Ludbrook, 2008). New Zealand inherited the rules permitting “reasonable chastisement” from Britain, giving it separate statutory force in New Zealand in 1893. In 1961 the new Crimes Act placed this permission in section 59. The call for repeal in New Zealand, like that in other countries, grew out of campaigns against corporal punishment started in the early 1960s. By 1979 Jane and James Ritchie were calling for the repeal at a conference held for the International Year of the Child (Ritchie & Ritchie, 1979). Advocates spent the following decade campaigning for the end of corporal punishment in educational and government institutions: schools were banned from using corporal punishment in 1990 and Social Welfare foster homes in 1991. 

The 1990s saw major government campaigns against child abuse, and the ratification of the United Nations Convention on the Rights of the Child in 1993. Despite the ratification of the convention and comment by the UN Committee on the Rights of the Child in 1997 the government did not move toward the repeal of section 59, although government campaigns discouraging physical discipline commenced in 1998.

Throughout this period courts were re-interpreting section 59 in cases involving parental discipline and generally narrowing the scope of permissible physical discipline. In 1997, for example, a Family Court ruling reduced the ability to use cultural considerations to justify physical discipline  (Somerville, 1998; Goldsmith, 2003, p. 290). Increased media focus on the child abuse occurring within some New Zealand families increased public awareness of the issue and the need for societal change. Researchers also addressed the impacts of the section on physical discipline (e.g. Dobbs & Duncan, 2004). 

After the turn of the century significant establishment voices started to back the call for repeal: the Commissioner for Children and a number of major NGOs including Barnados, Plunket and Unicef. Politicians from a number of parties placed private members’ bills on the issue in the ballot and Cabinet asked officials to investigate the repeal of the section on a number of occasions. 

So when Bradford’s bill was drawn from the ballot much of the research and government groundwork had been done. Politicians, public servants and advocates understood the issue, and there was a general will to move the issue forward. The broader political environment, however, was not so straightforward.

The initial debate on the Bill was set within a finely balanced political context. 2005 was an election year, and the National Party had a real chance of winning against the incumbent Labour-led coalition. National’s increase in support paralleled, and was linked to, increased support for socially conservative churches. The evangelical churches, just like their Australian and US cousins, had recently started deliberately engaging in secular politics (Lineham, Havoc, & Barbosa, 2007), and their ability to mobilise conservative voting and fund-raising blocs was very attractive to traditional conservative political parties. The leader of National was discretely building links with the evangelical churches using a “values” discourse borrowed from Australian and United States conservative political campaigns. In July he spoke to the Greenlane Christian Centre congregation without journalists present; as well as promising increased funding for “schools that teach the values of their community”, he also pledged National’s opposition to the “anti-smacking” bill (Hager, 2006, p. 254).

Formed in 1981 the Greenlane Christian Centre is one of the new breed of evangelical churches identified in a report on the state of New Zealand churches by Challenge Weekly (McNeil, 2006). Like many of its kind it has a congregation in the thousands and facilities, such as a cafe and a childcare centre, designed to build an inner city evangelical community. Many of these new churches took on active political roles; Greenlane Christian Centre, for example is linked to The Maxim Institute, a right-wing think tank, and campaigned against the Civil Unions Bill (Ngatoko, 2004).

Evangelical churches in New Zealand have a long history of involvement in moral based political campaigns, from the Prohibition and Sabbatarianism to campaigns to eliminate poverty and racism. The more recent rise of evangelical and pentecostal churches as a socially conservative political force in New Zealand echoes the pattern overseas although the mobilisation against abortion has been largely driven by Catholic groups rather than evangelicals. While historically politically weaker than the evangelical churches in the United States many of the New Zealand churches, like their Australian counterparts (Maddox, 2005), have become more involved in secular politics despite our traditional separation of church and state. The issues in New Zealand which have recently mobilised evangelical churches have been reactions against progressive legislation, such as Civil Unions and Prostitution Law Reform (Lineham, 2006, p. 9), although there were earlier limited campaigns against the teaching of evolution (Numbers & Stenhouse, 2000) and some evangelical involvement in the anti-abortion movement.  

The repeal of section 59 provided a rallying point for conservative Christian groups in New Zealand as the bill was easily framed as an attack on family. Christian groups had not had great success at entering the political debate in the previous decade, despite several attempts at the creation of Christian political parties (Miller, 2005), and many saw this as a political opportunity. Combined with an electorate moving toward right-wing parties, models of values based campaigns in Australia and the United States, an attack on families provided a platform for the development of the Christian right as a political power in New Zealand.

The Christian perspective on the repeal of section 59 was not, however, uniformly that of the socially conservative evangelical churches. For many years the more mainstream churches had seen the repeal as an important part of their social justice claims (Wood et al., 2008, pp. 94-95). Despite this history the churches were less willing than their evangelical colleagues to get involved in the political debate that surrounded the repeal. This reluctance was seated within a context of uncertainty about how the churches should involve themselves in state politics to further social justice agendas (Roberts, 2005; Dancer, 2006; Dancer, 2008). It was also a reflection of the effectiveness of the framing of the repeal as an attack on families — many within the churches felt conflicted about the perceived intrusion of the state into family life.

This conflict is represented in the split within United Future, the most Christian based party to win seats in the 2002 and 2005 elections. Peter Dunne, a Catholic, voted for the repeal; his colleague Gordon Copeland, also a Catholic, voted against the repeal. In the end this tension was too great and Copeland left United Future, eventually founding the Kiwi Party, whose most well-known policy is opposition to the repeal.

So it was in this context of a left-wing socially progressive coalition which was losing popular support opposed by right-wing political forces and an energised conservative Christian political force that the repeal was debated.

Dancer, Anthony. (2006). Towards a just society. Stimulus, 14(3), 44-50.

Dancer, Anthony. (2008). The reign of God and human politics. Stimulus, 16(3), 39-46.

Dobbs, Terry & Judith Duncan. (2004). Children’s perspectives on physical discipline: A New Zealand example. Child Care in Practice, 10(4), 367-379.

Goldsmith, Michael. (2003). Culture, for and against: Patterns of “culturespeak” in New Zealand. Journal of the Polynesian Society, 112(3), 280-294.

Hager, Nicky. (2006). The Hollow Men: A study in the politics of deception. Nelson: Craig Potton.

Lineham, Peter. (2006). The fundamentalist agenda and its chances. Stimulus, 14(3), 1-14.

Lineham, Peter, Mikey Havoc, & José Barbosa. (2007). Breakfast: That’s the Spirit! [Radio Program]. Auckland: 95bFM.

Maddox, Marion. (2005). God Under Howard: The rise of the religious right in Australian politics. Sydney: Allen and Unwin.

McNeil, John. (2006). The State of the Church in New Zealand: A report for Challenge Weekly (Updated December 2006 ed.).

Miller, Raymond. (2005). Future of the religious right in New Zealand politics. Stimulus, 13(4), 50-58.

Ngatoko, Lavinia. (2004). Civil Union supporters deface church billboard. Challenge Weekly, 62(47).

Numbers, Ronald L. & John Stenhouse. (2000). Antievolution in the Antipodes: From protesting evolution to promoting creationism in New Zealand. The British Journal for the History of Science, 33(3), 335-350.

Ritchie, Jane & James Ritchie (1979). Punishment Ideology and the Law. Paper presented at the The Rights of the Child and the Law, Christchurch.

Roberts, Campbell. (2005). Twenty years of the Church as a New Zealand public citizen: A “punch drunk boxer,” a “warrior” and “dancing with the wolves. Stimulus, 13(3).

Somerville, CP, Judge. (1998). Ausage v Ausage – FP 009/1760/96. New Zealand Family Law Reports, 72, 73-84.

Wood, Beth, Ian Hassall, & Robert Ludbrook. (2008). Unreasonable Force: New Zealand’s journey towards banning physical punishment of children. Wellington: Save the Children New Zealand.

19 thoughts on “Putting the referendum in context

  1. I think your facts are at fault.

    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.

  2. s59 explicitly permits the use of force (which includes a smack) for the purpose of prevention, as long as you are preventing and not correcting you can use reasonable force.

    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.

  3. Thomas Beagle writes,

    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.

  4. The “rod” in Proverbs 13:24 (the verse from which “spare the rod and spoil the child” is derived) is the hebrew word shebet which is the same word used for a scepter. In other words, it denotes the authority of the Father, not an instrument of punishment. A better translation would be “If you don’t provide leadership for your family, your children will be ruined”

    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.

  5. The law does ban smacking.

    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.

  6. Nick,

    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?

  7. A-ha. So the smack is okay for preventing disruptive behaviour but not for correction. You can, as a parent, smack in order to prevent disruptive behaviour, but not for the purpose of correcting it.

    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?

  8. Nick,

    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.

  9. Well we’ll agree on your last paragraph as I’ve just mea culpa’d on the confusion: I thought a smack was banned but you’re probably right that it isn’t insofar as it is for prevention. Therefore we have raised an interesting point, probably without knowing it.

    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!

  10. Sub sections 1 and 2 are contradictory and make the law an ass, and the politicians who voted for it. Shades of having your cake and eating it. Complete nonsense. I thank my lucky stars I am past the age when I am likely to have respnsibility of any children.

  11. JC,

    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.


  12. Even if subsections 1 and 2 are contradictory (and they don’t appear to be to me), section 3 resolves the contradiction.

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

  13. I think of it as the law making smacking your kids about as illegal as hitting other people; there are other defences to common assault and a threshold below which prosecution would be silly. I consider the exemptions to be repititions of the wider law, but they do mean we’re still sub-standard by the official international expectations.

  14. … so the law change will have made a bunch of child-hitting illegal that weren’t before, but ‘smacking ban’ seems over-broad.

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

  15. lyndon,

    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 :)

  16. Graeme,

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

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

    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?

  18. I like the Dunedin University study which found that smacked kids performed better in life. Which I guess explains why I didn’t do too bad in life, though some of it was pretty pointless, automatic punishment fortnightly for coming bottom in my class and ignoring the fact that over two years I was in the school hospital thirteen times with yellow jaundice. I guess I didn’t relate to a Public School, I only endured two years of it.

    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.

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