CYF boss apologies after parents go public - not for wrongdoing, but because those his department hassled were "upset".

A parent tells how he smacked his child

"I grabbed hold of her ankle and smacked her bottom" Two of his fingers went above the line of her belt, leaving red marks on her back.The smack worked. She stopped kicking and was soon apologetic.But the mental health service was about to give her a full medical examination. Lisa told a nurse about the red marks and the smack.A few days later, at 3pm on a Friday, CYFS staff rang. They had received a claim of abuse and they wanted the children out of the house while they investigated.

The question is, was CYFS right in doing that. How did it know the red marks were caused by a smack?

It didn't.

The social worker described the situation at the time as "critical". Family First has this case up on its website - ['case 5] noting that the family were interviewed by the police for for five hours. The kids were removed, even though she was told that the marks were caused by the child falling on a vaccuum cleaner. On the Monday, CYFS spoke to the older daughter at school to find out how abusive her parents were and left her in tears. One wondered why they didn't speak to her on the Friday before she was told to get alternative accomodation.

But it took involvement from the media to get an apology from CYFS bosses. CYFS boss Ray Smith said CYFS could have done a better job of talking through other options". Like hell they could have. He didn't say what those other options might entail.

"I want to stress that removing children from a home is a last resort and that is not what happened in this case... I am sorry that the girls were upset and unsettled by our involvement with their family. I acknowledge that, in this case, we could have given [the parents] better advice on how to explain to their children what was happening." He said the parents were "good parents", but the agency had been "asked to get involved simply to see whether a family that appeared to be struggling needed our help".

What a load of crap. That is an outright lie. The parent said that the agency got involved not to offer help but to investigate the allegation of abuse and kick the children out as a first resort after a complaint, thus interfering with the lives of good Kiwi parents. Then he has the audacity to say in a column today that:

This does not mean that CYFS is interfering in the lives of good Kiwi parents.

But he has admitted CYFS did just that in the above case. The parents had no option but to accede to CYFS demands.

Since when is CYFS there to "help" parents on how to "explain what was happening" when they don't even listen to explanations as to what did happen?

How the referendum question should be interpreted

"Do I want to go to jail if I smack as part of good parental correction in New Zealand?"

Lobbying on the training incentive allowance

Trudy Basire is a frequenter of the TradeMe message boards frequented by Natasha Fuller, who gets $715 as a beneficiary. Basire is leading the campaign to reinstate full access to the Training Incentive Allowance (TIA). Although Fuller is one Basire's Facebook friends, Fuller has "removed herself from public discussion" in the campaign according to this media release on the campaign website.

However it is good to see that Jennifer Johnston - the other beneficiary mentioned on this blog - has been constructive in her suggestions in discussions with the Minister. Such an approach can only lead to better outcomes.

Listen to her here on checkpoint . She has some good suggestions.

The smacking debate on Campbell Live

Campbell Live had an excellent programme on the smacking debate tonight. You can watch it here. Anton Blank (Te Kahui Mana Ririki) and Murray Edridge (Barnardos) represented The Yes Vote, and Sheryll Savill and Bob McCoskrie spoke for the Vote No lobby.

Everyone put their point across well. It was a well balanced progamme.

I support an allowance as an incentive for training

In the past day or two I have written about people on benefits who want an allowance from the Government to undertake tertiary training. It may appear from those posts that I do not support assistance for training purposes.

This is not the case. I support the retention of the training incentive allowance (TIA) with some amendments. The Massey University Extramural Students' Society said this in a recent media release:

National’s cutting of the Training Incentive Allowance will hit those who are motivated to improve their lives. Midwives, nurses and teachers are among the professions that solo mothers will struggle to afford training in. The TIA paid for up to $3,862.00 of actual course costs per year. Without this support many once-eligible students will not be able to make ends meet. Childcare becomes unaffordable if all spare cash is spent on course fees so potential success stories become shattered dreams

The key thing is that students should undertake study to improve their lives, and the allowance should be an incentive to do that. The recent case where a dpb recipient was doing just three papers a year on the TIA is hardly going to improve her life in the short term. A three year degree would take eight years to complete, a four year one even longer.

The problem is that, for those studying part time - meaning fewer than five or six papers - the TIA is treated like a beefed up allowance for course - and books - and childcare costs, when it should be treated like a student allowance for course and book costs only, for dpb, invalids and widows beneficiaries. No students can get the taxed student allowance if they do fewer than six papers in the two semesters. Nearly all students who do not work do more than six papers a year and collect the allowance. Those with kids can get a small WINZ childcare subsidy if they are not entitled to 20 hours free. But under the non-taxed TIA, you can do fewer papers and get the full allowance as well as a benefit, and use the balance over course costs for whatever you want to, as it is paid into your bank account much the same way as the money for additional course costs is with a normal student allowance. Some keep the money and get friends to mind kids or study at night so they can afford to get CDs or other consumables. If costs are over the allowance, you can borrow to pay for the balance with an interest -free student loan.

Personally I can't see, instead of canning the TIA, why the allowance can't be for those who take perhaps a mandatory number of papers, with perhaps an abated rate for those who take fewer. This would encourage beneficiaries to complete their qualifications at a faster rate and discourage slackers, while taking account of the fact that, as a sole parent, a primary responsibility is the care of their children. Some courses require block training and field work so I'd support 20 hours free being available for students on the TIA - not just 3-4 year olds - for these block courses and field work. After all, if they were able to apply for a childcare subsidy from WINZ - [can they?] - they'd get roughly the same amount.

Thoughts?

Natasha Fuller admits she may have been getting WINZ payments she was not entitled to

post is updated
Natasha Fuller is the gift that keeps on giving. This is the latest in a series of five posts on the women who protested National's decision to can the training incentive allowance relating to degree courses.

Fuller gets $715 per week from WINZ to surf the Internet and buy consumables but can't afford to study,had access to her partners bank account, and apparently posts under three four different names on message boards. One, bee35, from a mates place, where she says on 5 Jan this year, just after she broke up with her partner and used his money - via a credit card to pay for a rented place without his knowledge.

ok used his credit card and got myself into a rental he is going to spit tacks....We have lived together for 4 years but in that house 3.i do have mail cause at the start i had to get a benifit for awhile as he would not support me and my children and i spent more time in hospital than home so could not work, i no its wrong but i didn't no what to do it was for 3 months.

Terrible spelling aside, this looks like an admission of wrongdoing - or a lie in an attempt to get 50% of his stuff after a break-up.

Work and Income should be interested in this. I'm not saying that she was defrauding WINZ, but they could raise a debt if it could be shown that he was supporting her to a degree while she received state support, given her other admissions that he paid the mortgage and main bills, and her apparent ability to access his money via a credit card. She would have got Working for Families for the kids if IRD was unaware of her partners apparent high income. Even if she was living with her partner for three years only it means that she appears to be working on her business thanks to a 10K WINZ grant during that time. Would she be entitled to that grant? Furthermore, it was the same time as Labour revealed her income in Parliament.

No wonder Fuller doesn't want to speak to the minister. Something stinks. Her story is hardly consistent. Perhaps she's got something to hide?

Why couldn't Jennifer Johnston go to SIT - they have no fees

Jennifer Johnston wants to be a nurse and is moaning she can't get a training incentive allowance. She lives in Invercargill and started training two year's ago.

Jennifer is passing with an A-average and was expecting to embark on the nursing degree next year. But with the allowance discontinued and childcare, course materials, uniforms, transport and other costs not covered by a student loan, Jennifer has no idea if she can continue.

Some may not know that the Southern Institute of Technology in Invercargill now has a zero fees scheme. Is there any reason, given that she lives in Invercargill, why Jennifer Johnston cannot go to SIT and study a batchelor of nursing there, and get a child care subsidy and an interest free loan for books and transport costs?

Labour's hypocrisy

Nobody has seemed to have pointed out the hypocrisy of Labour going to the Privacy Commissioner because National released details of the income of two beneficiaries on the Domestic Purposes Benefit. Turns out that Labour - well David Benson-Pope - did exactly the same thing in April 2007, when he detailed the benefits Ms Fuller was receiving and compared them with the pittance she would have received under Nationals tax cuts.The story was on Prime News tonight.

Claims that Fuller was getting WINZ assistance illegally

Natasha Fuller is the beneficiary who is getting $715.00 a week on the dpb to spend most of her day on message boards complaining she cant get the Training Incentive Allowance, despite boasting as being a fully trained private investigator..

She posts as the happy hocker – surely a spelling mistake – on message boards, as well as justyns.

There are claims on the message boards that Fuller was unlawfully collecting a benefit while living with her partner. If so, she should be taken to task for it because she would not have been entitled to it. Her high income partner didn’t give her much money. It is claimed that Fuller was on the benefit while living with her partner. I have not been able to verify that claim, as WINZ won't tell me (I didn't ask either). She got pregnant in June 2007, around about the time she was described as a sole mother who used a WINZ enterprise allowance to run a small business that failed. She also allegedly got a 10K WINZ grant to buy a car and have it signwritten for her business before crashing it and getting another one.

In addition she was given $200 a week to buy food when she lived with a partner. Her partner [ whom you can see here just before they split up ] paid for the mortgage because it was under his and his mums name. Now Fuller says she is “ over men so over being hurt and have decided that u just can’t beat a good vibrator:)”

One poster warned

You have stated on the forum board that you have been living with someone and collecting DPB, that is FRAUD. All of us that are paying taxes are paying for you to live the high life and boast about it.

She told the media she got $400 hair extensions around three months after her daughter was born. Apprently her daughter was born 3 February 2008. But on 4 February 2009, on a message board where she writes up to 10 messages a day, she said she had hair extensions for more than a year - if so, she may have been pregnant when she got the extensions.

Fuller says her partner left in December 2008 and that was when she said she applied for the dpb again. She says she doesn't want to work more than 20 hours. That’s because she may lose the benefit and the In Work Payment is less than the benefit, and you can't get both.

You can see Fuller on You Tube right here living the high life doing karaoke. She’s drunk. On her Facebook site she gloats that she spent more than $200 on CDs last month.

It is clear that on the dpb you can get up to $1000 a week: Domestic purposes benefit of $272,an accommodation supplement of $225 – ( Fuller gets $110 and a disability allowance of around $35 a week) , tax credits of $200, childcare assistance of up to $181 for one child, and out-of-school care and recreation assistance of $72 a week.

Fuller doesn’t deserve a training incentive allowance. But she should be able to lobby on government policies without ministerial meddling. However Labour shouldn't moan about it as it released Fuller's benefit details in Parliament in 2007. Hypocrites. **Further updates here**

I have no sympathy for rich beneficiaries who lose their Training Incentive Allowance

post has been updated
I do have a problem with Social Development minister Paula Bennett releasing private details of beneficiaries to a newspaper purely because they criticised National’s policy to remove the Training Incentive Allowance (TIA) for those who are taking graduate courses. Bennett said she looked at the Privacy Commissioners website for guidance on whether to release private information. Perhaps the first time she looked at that website was shortly after 11:24am yesterday. She obviously didn’t look at the Cabinet Manual.

Mind you I also have a problem with a beneficiary Natasha Fuller who has three kids and more weekly income than our entire family. She has enough to pay for hair extensions ( which she may or may not have got when getting state assistance) but moans about how she can’t afford to study without the TIA. I am also a student with three other mouths to feed and I can’t afford $400.00 for hair extensions. But unlike Fuller I probably get 5-6 hours sleep a night and spend more hours studying than she does because I do a lot of it when the kids are school or asleep.

Natasha Fuller criticised National for removing the Training Incentive Allowance from degree courses, adding that National wanted people like her to aspire to working in a supermarket. Except that she is a trained private investigator and has done a small business course. Perhaps people working in supermarkets would aspire to be in her situation. The never-married Fuller has three kids to two different men and has been on and off the dpb for about three years. She currently gets $715.00 per week – way more than those on the average wage - but that does not include child support or any money from IRD – or food grants. I was told by the NZ Herald that the income probably doesn’t include Working for Families, either. That's questionable. So if you are working for 40 hours a week and you get less than $17.88 an hour, you are worse off than Fuller, and she doesn't even work. Fuller should go and get a partner called Bill S*it and link up surnames – Fuller-s*it.

And this from Jennifer Johnston, whose details were also made public.

But with the allowance discontinued and childcare, course materials, uniforms, transport and other costs not covered by a student loan, Jennifer has no idea if she can continue.

She can do what other people do. Go off the benefit, onto a student allowance, study a full year instead of just three papers, get a student loan for course costs, borrow $1000 for course related expenses like books, transport, and computer gear, get a grant from WINZ for second hand school uniforms. And get a part time job, and a childcare subsidy from WINZ.

Why should student allowances be taxed, whereas TIA’s are not? The only reason a university student is on the dpb is to save up to $3620 on course costs every year - and study part time to ensure course costs aren't over the allowance amount each year - and to live in the manner to which they are accustomed to. Why should they when others get student allowances?

McCoskrie and Savill on Q+A today

Bob McCoskrie, and Sheryl Savill in particular, did pretty well against Paul Holmes on Q + A today. You can see both the interview and the transcript here. I wish TVNZ would start spelling their guests' names correctly, his name is not McCroskie, its McCoskrie, and her name is not Cheryl, it's Sheryl Savill.

The interview clearly spells out their position on corrective discipline. Both clearly do not believe that parents have the right to smack their kids. They simply believe parents should have the option of whether to use that light corrective smack in certain circumstances without it being considered criminal.

Herald poll reveals parents are afraid to admit to smacking kids

The Herald has done a poll on how often people smack their kids. They interviewed parents of four year olds and compared this to surveys of parents of four year olds in decades past. Of course its probably irrelevant to the Herald that that parents of four year olds are now predominately in their 30s and 40s, and as they are both working, have less time with the kids, now in 20 hours "free" childcare. Parents of four year olds were initially in their 20s, with just one breadwinner.

In 1997, 54% of parents of four year olds smacked their kids at least once a week - the same as in 1977. In 2009 it had dropped to 8.5% The survey tells us one thing: People are afraid to reveal that they break the law.

If 39% of mothers and 33% of fathers never smack, how can 66% of mothers and fathers smack occasionally? Furthermore why are 85.5% going to vote No in the referendum?

I`ll tell you. It is because some people smack their kids but will tell pollsters they don't, because they are too scared to.And even more of those who tell pollsters they don't smack their kids don't want smacking to be a criminal offence and will indicate this if they vote in the smacking referendum. Those that do smack will no doubt vote No.

Surveys should reveal that parents smack their kids less frequently.Of course they would, for three reasons. Older parents smack their children less frequently. Mothers now go to work and have fewer hours of contact with their children.Perhaps some that have the courage to declare at least weekly smacks are stay-at-home mums. If others just see their kids in the evenings and weekends and smack their kids once every three weeks in stead of every week like they did when they weren't working, the frequency, based on contact time, has actually increased. Also, why would you smack your kid in public,risking police attention.

Some parents are effectively saying they don't smack their kids at all, except occasionally, and furthermore they don't want it to be a criminal offence, attracting police attention, in case they occasionally have to break the law. Most of the rest want to continue to do so without breaking the law.They simply believe parents should have the option of whether to use a light corrective smack in certain circumstances without it being considered criminal.

How would you feel if you lost $1.3m every day?

This guy did last year, and he doesn't seem to mind all that much.

The amount he lost on average every week is equal to the cost of the smacking referendum.

Number one Progressive Party policy: Supporting Jim Anderton financially until he retires

Jim Anderton, who has turned 70, has told his Progressive Party supporters that they can join Labour and retain their Progressive membership. That is discriminatory against Green and National Party supporters who are members of the Progressives. So Progressives have two policies: supporting Jim Anderton until he retires and setting up a progression of membership to Labour for when he does.

Perhaps this progressive nature of the progression of party membership to Labour is why the party is called the Progressives.

Perhaps Anderton is doing this because should the Progressive membership go below 500, Anderton will not be a leader of a registered political party and his funding as a Parliamentary party leader could lapse as well. Surely it wouldn’t have anything to do with certain members in the Progressive Party who are seeking positions within Labour and have to be Labour members to do so.

The Progressive Party is sitting at 0% in the polls at the moment and is in reality a front so Anderton can get more funding as a party leader. Anderton is collecting National Super as well.

White Lies: Not a bad band

Driving back from Palmy a few hours ago I was listing to NatRad and they had a special on a London band that sound's like a cross between Joy Division and The Editors, with a bit of OMD, Cure etc. They are playing at a K Road venue in Auckland next Saturday.

The band is White Lies. Nice bass, nice drums, nice band. Here's their single called To Lose My Life. About 100 new bands form in London every day. This is one of the better ones. Have a listen. Here's another of their songs. Don't take the lyrics too seriously.

Oh, and on the subject of good music, to cheer you up after listening to White Lies, make sure you download Coldplay's latest album Left Right Left Right Left because it is the best album of the year to date.

Goffs gaffe

Yesterday I covered the story of Bruce Burgess and how he has threee properties, no job and was turned away from WINZ because his wife earned $21k. I broke the news yesterday that Burgess is entitled to some benefit from WINZ - and not just temporary access.

It could well be that Labour - who leaked the story - knew all along that Burgess was entitled to WINZ support. Perhaps that is why yesterday's media release said:

It appears his wife’s income, under $30,000, disqualifies the couple from any temporary access to the unemployment benefit.

Even if the Burgess' income was $28k they would not have been entitled to an abated benefit, Thats why they used the $30k figure and the word " appears" in the media release - to decieve, when the real reported figure was $21k.

What dorks Phil Goff and his staff are. What's the point of having researchers and media people, Phil Goff, when you make Gaffes like this?

Why does Phil Goff ask such dumb questions?

Hon Phil Goff: Why did the Prime Minister answer in the House yesterday that a person who has been made redundant and who has a spouse earning $26,000 a year is eligible for financial support for job search or retraining when he or she is not?

Hon JOHN KEY: Because it is correct.

I worked hard, but I may lose my home

*** what do Labour's researchers do? ***
updated
Bruce Burgess lost his $750 per week job in the recession and was turned away from WINZ because his partner worked part time. She earns $21,000 a year. WINZ turned them away,and so they wrote to their MP who so happens to be the Prime Minister.

When he got the letter he reportedly flicked it off to Paula Bennett's office who did nothing.Then the Labour Party found out about it. Instead of checking the Burgess' entitlements and assisting them, Labour told the NZ Herald who wrote this story. On the surface, it needs to be fixed up because it is appalling.I spoke with the reporter early this afternoon and told him that the family is entitled to a partial benefit.

If they are earning just $21,000, WINZ was wrong to turn them away. They are entitled to register as job seekers through WINZ and are entitled to $91.20 a week in an unemployment benefit as well as possibly an accommodation supplement to assist them with their mortgage. Couldn't the Herald find that out? Depending on their mortgage they may be entitled to further assistance. I've relayed that info on to Keys office.

Given that Labour leaked this story, I'm wondering if its pixie researchers do any research. It's latest media release says that Burgess' wife's income disqualifies the couple from any temporary access to the unemployment benefit.

That's false. And Labour now know it.

update Burgess claims to own several properties, but is not receiving income from them. And I see that John Key has relayed the above in Parliament, and while I was doing this post the Herald updated its story. I spoke with the journalist and requested he do so because the facts of the story were incorrect given entitlement of a benefit on $21k.

update2 And Labour knew all along that the Burgesses owned multiple properties but apparently never told the Herald.

more here.

Stuff stuffs up more stuff

The mainstream media think blogs are bad for discussing the Weatherston case.

But the above story was pulled from Stuff today. The cache is here.The jury members have been allowed to return to their homes for the night to check out the Internet.

hattip WhaleOil.

Phil Goff's idiotic idea

Phil Goff wants the dole paid to people made redundant due to the recession even if their partners are working. He wants partners income to be disregarded in means testing.

To pay the full unemployment benefit to partnered redundant workers, the whole benefit system would need to be revamped as when an unemployed person with a non-earning partner gets the benefit, half the benefit is paid to the partner, and half to the unemployed person.

Here's what could happen within the current system: A person is made redundant. She earned $35,000 a year - about $670 a week - and does not live with her partner, who has the four children and earns $80,000. Both have separate bank accounts. Instead of getting the dole as at present, the couple move in together. Both get the dole, as the benefit payment is split between partners and into each bank account, and the newly unemployed woman no longer has to pay child support. Good idea, they think. As she is unemployed, Working for Families payments are paid through WINZ. If WINZ do not note the partner's income - because that will abate the benefit instead of waiving it - WINZ would also pay Working for Families payments - as she now has the kids - and the accommodation supplement to pay for the high mortgage.

They'd get about $500.00 extra each week. On top of that, if the unemployed person's bank balance went below a certain threshold, she could get food grants and advances to pay power bills as WINZ disregard the income of her partner.

A nice little earner to ride over the recession. And no childcare to pay too as the unemployed man can look after the kids while his wife works and collects the benefit.

But there's a downside to this arrangement. Guess what it is.

Punter loses $43k on Warriors game

Last week the NZ Herald reported that last week an Australian punter bet A$35,000 ($43,260) on a Sydney Roosters victory at $1.85 against the Warriors in the weekend.

The Warriors won 30-24.

Ouch. I wonder if he put a bet on a Wallabies win as well. If so the letter W is not his favourite letter of the alphabet, is it.

Clayton Weatherston trial: Spooking bloggers is now weekend news

It appears some bloggers have been spooked by the media in relation to comments they may have made on the Clayton Weatherston trial. I had a chat to Kiwiblog's David Farrar in the pub during the week, asking if he had deleted some posts on Kiwiblog relating to the trial after media reports . He revealed he had, because he was unsure what he should or should not say. That, apparently, is worth publishing in the New Zealand Herald.

But it was the comments on Kiwiblog that the Solicitor General was apparently concerned about, not his posts. Farrar's posts on Kiwiblog will be back up after the trial. Bloggers need to be aware that their online blogs, if hosted in New Zealand or intended for a New Zealand audience, are covered under the same media laws as other media. Posts should be treated the same as news articles if it is reporting, or opinion if an opinion is given - and there are different media laws on news and opinion - with comments treated the same way as the letters to the editor section in newspapers. Legally bloggers are responsible for all comments on their blogs, and if it is not practical monitoring such comments, the comments facility should be turned off for relevant posts.

Here's some guidelines to avoid unwanted attention.

With reference to the Weatherston trial it is fine to reveal that he is guilty. He has admitted as much. It is fine to report evidence and provide certain comment on that evidence provided it is factual. The latter is hard to do if you are not in court :-). I believe it is also fine in some circumstances to comment on a persons likely sentence although I would not advise that if you have little knowledge of media law. But it is a fact that Weatherston has pleaded guilty and has given evidence. What is not fine is to provide an opinion as to what a person will be guilty of, or unless that person has pleaded guilty, whether he should be found guilty at all. It is also unacceptable to report the evidence with comment indicating your preferred trial outcome - for example if a person pleads not guilty after someone was shot dead, and gave evidence that the deceased deserved what he got, you can't conclude that he did it and therefore should be found guilty. Some blogs have overstepped the line on the Weatherston case in this respect.

What is new in the mix recently are Facebook groups. I was invited to join at least three Facebook groups relating to the Weatherston trial. One was quite blatant, had several hundred members and has now been closed. While joining a Facebook group may not be an act of contempt any more than sitting in a courtroom witnessing contempt of court, it is also not a good look joining a blatant Facebook site on a trial and then blogging on a non-contemptual way on that same trial, even if joining that site is to merely to keep tabs on goings-on within that group. This is particularly if many of the people joining that group read your blog and you have made a comment on that Facebook site declaring your preference to a trial outcome.

I would encourage bloggers to continue blogging on trials as much as I would encourage reporters to report on trials. But bloggers need to understand contempt and defamation media laws to be aware of what they can and cannot say.

Jakarta bomb blast

Got the news of the bomb blast in Jakarta this afternoon. One Kiwi was killed in the blast. My wife heard an interview on the radio with one of our close friends who was one of the Kiwi survivors in the JW Marriott Hotel at the time of the blast, packing his bags for his flight before breakfast.

He has written an account of the explosion here. Had he chosen to pack his bags after breakfast, he may not have been alive to tell the story, in which case it would have me along with others who would be preparing to pack bags.

Police admit they may prosecute for smacking cases initially considered "reasonable force in the circumstances"

Police have not ruled out prosecuting a parent who lightly - and with reasonable force - smacks their child, despite proponents of a law change on smacking saying it will never happen.

Prior to 2007, if a parent was taken to court because they smacked their child, they were able to use a defence of reasonable force - and if that corrective action was minor, they would be acquitted. Currently,should that same parent be taken to court for the same action, that parent could have a criminal conviction as there is currently no defence in law for actions undertaken for the purpose of correction.

Proponents of the law change say Police will not prosecute light smackers. Police, on the other hand, say it may well happen, adding the younger the child is, the more likely it is to happen. Police cannot say if a smacking prosecution - and there have been a few lately - would be of a kind that could have been successfully defended under the old law. As it happens one case in the last quarter was discharged without conviction, meaning Police thought it in the best interest to prosecute, but the court did not. One parent was prosecuted in July 2008 and subsequently convicted for smacking. That parent may well not have a criminal record had she been charged just over two years ago.

This means that a smacker has been convicted under the new legislation. Yet the legislation has not prevented one child from being abused.

However some events that are prosecuted as "minor acts of physical discipline" would generally be seen as outside what is considered reasonable in the circumstances. It is now the job of the police to determine this. However, police do not preclude reasonable smackers being charged for assault under a minor act of physical discipline either; all such prosecutions have progressed through the court system or the offenders are on bail.

The way that Police are applying discretion is confirmation that Parliament has abdicated its responsibility in lawmaking. We do not elect a parliament to pass policy via an Act of parliament. Not only does parliament want police to do its job - make law - in deciding to use factors outside legislation in decisions to prosecute, parliament wants Police to do the courts job,in deciding what is reasonable in the circumstances under the guise of "no public interest to prosecute". However, only for correction. In case of smacking for other purposes a reasonable force defence can be raised.

If police get it wrong on correction, there is nothing the accused can do about it other than appeal.

Prominent QC criticises Sir Geoffrey Palmer’s work

An article in the Press yesterday [PDF] by QC Grant Illingworth said that the law that banned smacking is inappropriate. In the article titled Good motive, but bad law, Illingworth, who specializes in public law, says that the anti-smacking law is bad law and is not an adequate response to child abuse.

This is despite Sue Bradford saying that her law was not supposed to minimise child abuse, after saying that it was. Bradford also said smacking was not a crime, then said it was. Parliament said it shouldn't be, but made it so.

One of the aspects to the law Illingworth appears to be criticising is the police discretion clause. This clause, written by Sir Geoffrey Palmer, is basically a suggestion and an abdication of parliamentary responsibilities in favor of the police taking power over innocuous behaviour that should not be criminal.

Illingworth says the amendment is an extremely poor piece of legal drafting in that it is calculated to create confusion rather than clarity, it criminalizes behaviour which should not be classified as a criminal offence, and it fails to provide adequate protection for those whom it was designed to help.

You look worried...things not going according to plan

You have to watch this video from Young Labour. Its a rip off of this ad. Check out Pete Hodgson's cameo. He'll get you the good stuff. Then the bells of socio-economic freedom will chime for all.

Thanks Young Labour. What a laugh.

It's clear: Labour want to be followers, rather than leaders. Perhaps that's why it is in opposition. Join the opposition. It started with a lone protest. Then more and more followed (about 10 apparently). And all you can do is watch. Helpless. Twitching.

Face it Labour, the tide has turned. And it ain't going your way. All you can do is ask people to join the "opposition". Labour wants to be the the natural party of opposition. However I do really think that Labour's "I'm joining the opposition" capaign is at least nine months too late.

Does Clayton Weatherston deserve a lower sentence than a robber or a sex offender?

Clayton Weatherston took a knife to his girlfriend’s place and stabbed her 216 times in the face, eyes, neck and heart. He has been charged with murder but is pleading a defence of provocation. This has led to repeated calls for the repeal of at least section 169 of the Crimes Act, which allows a provocation defence for murder. Labour's Charles Chauvel has a bill [PDF]to do just that – although he is probably more concerned about the gay panic defence, rather than consistent sentencing.

Provocation operates as a partial defence. If Weatherston is successful he'd have a considerably reduced sentence. How much? Less than he’d get for sexual offences or kidnapping, at least. That’s because the sentence is purely up to the sentencing judge, not the legislation and sentences for manslaughter have been minimal because judges no longer apply the law to provide for tougher sentencing for the worst crimes.

The maximum sentence for rape is 20 years, and for manslaughter it is life. Life is the minimum for murder unless the judge gives written reasons for an alternate sentence.But many sex offenders (like Graham Capill) get higher sentences than those found guilty of killing a cop with a stolen car. Judges use previous cases to determine sentencing for manslaughter, none of which have been more than 16 years, most are far less. Here's some comparisons.

This guy got six years for aggravated robbery, but this woman would have got just five years for manslaughter had the crown not appealed the sentence.This rapist got 10 years, but last month this killer got sentenced to just over four years, but could be out of prison next month. He spent time in custody before sentencing. This sentence is just over half the seven year maximum sentence for wounding with intent to injure. This guy got nine years for kidnapping – but Rachael Namana got six years for killing Lillybing. A guy I used to know got six and a half years for unlawful sexual connection, but had he slaughtered one of the kids with a baseball bat he may have got a shorter sentence. Had the kidnapper or Capill been convicted for manslaughter they’d have probably got shorter sentences too.

So in effect what Weatherston is trying to do is get a shorter sentence than many sex offenders get – but he killed a woman by stabbing her 216 times. If he is successful, and gets, say, the three years that this killer got after successfully using the provocation defence , that’s just five days for every stab. That is assuming he completes the full sentence.

The provocation defence may be the topic of the moment, but there is also something wrong with our sentencing system if politicians and judges think that those who kill people deserve lower sentences than do robbers and sexual offenders.

clarification Despite the title, this post is not to be seen as taking any normative position on Clayton Weatherston's case, nor does it do so.

Idiot

Hat tip No Right Turn

Labour's woes are self-inflicted - but linked to the Maori Party's success

Labour Party activist Tony Milne has written an interesting piece eight months on from the election.

No one wants to hear from Labour. The public had 9 years to hear from Labour and Labour is well aware of that. But that doesn't mean that Labour isn't rebuilding. Labour is quietly rebuilding membership and organisation. Labour MPs are quietly reconnecting with the community, listening, debating, engaging. The online presence is a good example.Over 800 activists have joined the new Grassroots Labour site - a site for Labour members to chat, debate, and organise in an open forum. Red Alert (the Labour MP blog) has quickly become one of the most popular political blogs But such rebuilding takes time to filter through into public support and political polls.

I don't expect to see much movement in Labour's polling for at least another 12 months. The question is, can Labour do enough in the next 28 months to increase its support by the 6% or so needed to form a coalition Government with other partners? And will there be any partners?

That last sentence is the money one and the answer is no. Way back in April 2005 I predicted that the Maori Party would be a real force and that Labour may end up shunning the Maori Party. That was months before the 2005 election and the Maori Party was on the up.

Indeed, Labour shunned the Maori Party, describing it as last cab off the rank. Now they are a indeed a real force - or in Hone Hariwira's words a "limousine" - as it holds most of the Maori seats. It is co-owner of the rank. The reason this is a problem for Labour is because it lost the election and the support of Maori. Nationals arrangement with the Maori Party is proving positive for Maori, and is increasing support for the Maori Party. The Maori Party could be come National's Ratana. If Labour does get the 6% increase suggested by Milne, there will be no one to form a coalition government with if the Maori Party are not onside and Jim Anderton goes.

This is Labour's biggest problem. And it is of its own making. Blogging and grassrooting wont solve that as all this is doing is preaching to the converted activists like Milne, and communicating with the blog readers and grassrooters. Neither will needling the Maori Party for going with National. Duncan Garner wrote a good blog post last week which pretty much sums up what some blogs, including this one, have been saying for a long time.

The most powerful coalition partner at the moment is the Maori Party. The holders of the Maori seats have been in government for decades. There is no reason why Labour will gain the support of the holders of most of the Maori seats in 2011. Therefore Goff will be Labour's most unsuccessful leader in modern times.

Human Rights Commission says you are allowed to smack your kids

Hurrah for the Human Rights Commission. The Human Rights Commission says parents are allowed to smack their kids after all.They can even use correction provided that such correction is not "for the purposes" of correction, as long as the purpose is for specified purposes as defined in Section 59 of the Crimes Act.

Such correction could be for non-corrective purposes, like prevention, or for the purposes of being a normal day-to day parent, provided correction itself is not your main purpose of correction.

But if you prevent a child from doing something and correct them using reasonable fore for the purposes of stopping them, that's allowed in the same way as reasonable force was allowed in the old law. If you prevent a child from doing something - like stopping their tantrum - and you prevent them from undertaking in such disruption with a smack for the purposes for correction, that's against the law and not allowed.

This whole hoo-har is a little bit like a teenager inhaling, not for the purposes of utilising his cigarette, but because he wants to look cool with his peers. Should inhalation as part of a good smoke be a criminal offence because others abuse their lungs? After all if this teen smokes twice a month he may go overboard and get lung cancer in six weeks and be investigated by people who investigate suspected cases of lung cancer. He may get his lungs taken away from him for a while so he can't inhale - or give him a plug for his mouth and let him breathe through his nose and put him on a drip. But he must not inhale. Therefore,we should announce a bill banning inhalation, then amend it to a ban on smoking, while saying you can only smoke cigarettes if you don't inhale. We could call it the stupid Clinton law and have a referendum on it.

Busy while someone is on trial

I’m pretty busy at the moment but not too busy to find the Clayton Weatherston trial disturbing, particularly his clam of provocation.

As Anita says, s169 of the Crimes Act says that blaming a victim is a defence, it says that if the victim provoked the offender and he killed her it is not murder. The Law Commission has recommended the section be repealed from the Crimes Act, and used as a sentencing issue only.

Was Weatherston jealous that she was packing her bags for a good Treasury job, while he missed out on getting a full time lecturers position at Otago? If so, will he get one now that he killed his former girlfriend and student?

I note that blogging academics are keeping a wide berth on commenting on this trial.

Why it happened: The Foreshore and Seabed Act and subsequent ministerial review

Well I’ve still to finish reading the ministerial review of the Foreshore and Seabed Act 2004. But what is lost on many is how the Act and the subsequent review occurred and its relevance to Labour getting turfed out of office in 2008.

Firstly, the Foreshore and Seabed Act is not just about the Treaty of Waitangi, although Treaty principles and Articles were breached. It is more about the doctrine of Aboriginal Title.In a nutshell, this is simply is that indigenous peoples have some form of property rights, which are not affected by a transfer or acquisition of sovereignty. Such property rights are recognised by Article II of the Treaty of Waitangi. So when people say that the Foreshore and Seabed Act breached Article II of the Treaty (it breached Article III as well), that is reflected in the doctrine of Aboriginal Title.

Coastal marine areas were subject to this Aboriginal or customary title unless it could clearly be shown that it had been extinguished. Prior to the Ngāti Apa case that eventually led to the Foreshore and Seabed Act, Government policy was that Māori customary title had indeed been extinguished, whereas Māori asserted their ownership from first contact

The whole litigation started back in the mid 1990’s. The Marlborough District Council refused to give Ngāti Apa a mussel-farming licence to farm in their traditional area. The iwi eventually appealed through the courts, which ruled against a contention that statutes affecting the foreshore and seabed extinguished Māori customary title.

The Te Ture Whenua Maori Act 1993 gave the Māori Land Court jurisdiction to determine whether the foreshore and seabed was Māori customary land. The Court of Appeal in Ngati Apa said it could determine title, which led the Government to claim that Maori could take over the beaches to the exclusion of everyone else. It decided that allowing public access to the beaches would be better even if the Treaty is breached in the process. In reality, the worst case scenario is that a small number of iwi may have successfully tested their claim to customary title in court. However, rather than let that process run its course [and it is most unlikely that the Maori Land Court would have declared large areas of the foreshore be turned into freehold land, anyway] the government kneejerked, deciding to legislate to nationalise property rights to public areas of the foreshore and seabed just four days after the court decision.It intended to deny Maori the right to explore their common-law property rights in court – supposedly indissoluable rights - while allowing other New Zealanders to secure private ownership.

The Waitangi Tribunal found the Crown, in choosing to legislate, seriously breached the principles of the Treaty by failing to respect tino rangatiratanga, partnership, active protection.

Instead of amending the Te Ture Whenua Māori Act and the Resource Management Act, the Government incorporated other changes to those Acts into the Foreshore and Seabed legislation - despite select committee disagreement. The Act ignored the doctrine of Aboriginal Title as it failed to properly balance customary and public interests. It denied Māori options to pursue due legal process. It was discriminatory against Maori. Note: Don Brash was not the National Party leader when Labour decided to legislate.

The Maori Party was formed in the backlash of this Act. The ministerial review was part of the agreement between the Maori Party and National. The issue in the review was essentially whether the government unjustly expropriated Māori customary interests in the foreshore and seabed by vesting it public areas in the Crown, and by imposing restrictions on recognition of customary interest. It found that the government did just that and recommended the Act be repealed.

We have the Maori seats to thank for this review as without them, the Maori Party would never have been formed and the ministerial review would most likely not have occurred. We can also thank the Marlborough District Council for a National Government, as without its decision, subsequent events leading to the formation and rise of the Maori Party would also not have occurred,and we'd probably have a Labour-led Government with Labour holding most of the Maori seats.

National dreaming over cannabis

I’m disappointed, but not surprised, that a bill allowing cannabis to be used for medicinal purposes did not even get to select committee. In effect, the bill, seeking to amend the Misuse of Drugs Act, was treated the same way as a New Zealand First bill from Peter Brown on euthanasia a few years back – bumped on a conscience vote. Every National MP voted against it. Every Act MP in the House voted for it. Is that a first?

Apparently there were problems with the bill. That’s why it goes to select committee to iron out such problems. National’s Johnathan Coleman opposed the bill because he thought it would bring cannabis into mainstream society. Note to Coleman: cannabis is in mainstream society.

Meanwhile Coleman and his friends will partake liberally of other drugs like tobacco and alcohol. Both have caused enormous damage in mainstream society. You’d think those at National would at least send the bill to select committee for debate.I even had a suggestion to amend the Misuse of Drugs Act. This would retain the current classification, but selected users would not fear prosecution for possession of reasonable amounts, and light use, for medicinal purposes.

9(5): To avoid doubt, it is affirmed that the Police have the discretion not to prosecute in relation to an offence involving the prescription, administration, cultivation, supply or possession of cannabis or the genus Cannabis plant for medicinal purposes, where the amount of cannabis is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.

Foreshore and seabed law should be scrapped

No surprise. The ministerial review of the Foreshore and Seabed Act found the legislation to be deficient in that it was biased against Maori and failed to recognise property rights. The report is 160-odd pages and I`ll comment on it after I have read it. The Government will take a couple of months to formally respond, no doubt, but Minister Findlayson has said that public access to the beaches is not going to be an issue. Never should have been. Even if Maori customary title was to convert into freehold title, parts of the Foreshore and Seabed would not have to come under Maori control, and public access to beaches would never be restricted. As Tariana Turia has said:

Public access could have been protected previous to this legislation though using the Te Ture Whenua Maori Act and the RMA. We didn’t need to have a piece of legislation that took away the customary rights of hapu to enable people to have those access rights – they are there in law and New Zealanders have right of navigation and access to all areas of the beach.

The press conference with leaders of the Maori Party is here.

Academics and wasting money

I have a lot of respect for academics like Brian Roper and Andrew Geddes but find it interesting that on one hand they state that the smacking citizens initiated referendum - which has no legal impact whatsoever - is an "absolutely appalling waste of money" and the money should be given to CYFS, but on the other hand the question should be better worded.

If the question was better worded, wouldn't the referendum still be a $9 million waste of money if direct democracy has no legal impact?

For that matter, is the Families Commission a waste of money - its budget is $9 million - if it has no legal impact? Have I just identified some reallocation that could go to CYFS so that more real families can be investigated for smacking their kids?

Update Family First's Bob McCoskrie has the answer. The money can come from the MSD in the first place. It's all budged for. Now all we need to do is fire the nosy CYFS managers who tell their social workers to investigate alleged smacking.