Baldock's petition question has been acknowledged

Larry Baldock's petition question has been formally acknowledged. It is:

Should Citizens Initiated Referenda seeking to repeal or amend a law be binding?

Binding on WHOM? On this wording the Government can ignore it on the grounds that the question does not specify who or what is to be bound.

OK, lets take a wild guess and say binding refers to the Government. But even if referenda are binding, isn't it worth stating what you want the Government to do - like state in the question how referenda should direct the government to change the frigging law?

Like, the question should address HOW the government should respond.

The Clerk of the House is now inviting comment on this wording.Send three hard copies to:
The Clerk of the House of Representatives
Parliament House
Parliament Buildings
Wellington

The deadline for comments on the wording of the question is 5pm on Friday, 16 October 2009.

Smacking defence was used for brain damage:Greens

I have seen some correspondence from the Green Party regarding the section 59 referendum.

If the question asked in the referendum had been “Should a parent be able to avail themselves of a defence of “reasonable force” in the correction of their child in cases where they have caused brain damage to their child” would you have answered “Yes”? Would you seriously want this situation “decriminalised” again? Because that’s what Section 59 was being used for and why police were becoming increasingly reluctant to prosecute serious cases of child assault.

Brain damage. What will the Greens think of next - stab wounds?

The review of the law parliamentary intent on smacking

The Government has announced the terms of reference for policies and procedures used by Police and CYFS in implementing parliamentary intent on smacking offences. You can read about it here.The terms of reference:

To review New Zealand Police and Child, Youth and Family policies and procedures, including the referral process between the two agencies, in order to identify any changes that are necessary or desirable in the interest of ensuring that:
1. good parents are treated as Parliament intended under the Crimes (Substituted Section 59) Amendment Act 2007.
2. provisions of the law (both criminal and under the Children, Young Persons, and Their Families Act 1989) are applied to those who abuse children.

So, child abusers are to be treated with reference to the ( already existing for years) law, and smacking investigations will be reviewed with reference to parliamentary intent. This is a review of policies and procedures in line with parliamentary intent, based on data surveyed by the MSD CEO and police commissioner, who head the departments that have drafted up the procedures and have preparing the data for the review. Joining them is No voter Nigel Latta (and the Public Address people are NOT impressed at all with that). Latta has said that he doesnt support smacking parents being subject to criminal prosecution or investigation.

The government does not want to see parents criminalised, nor does it believe the act intends for this to occur. But acts of parliament don't have " intent" - Parliament does and the terms of reference conflate the two because the government doesn't want to give the appearance that the wording of the Act does not state parliaments intent. "Parliamentary intent" was not passed, an Act of Parliament was. That is why it is not a review of the law.

Latta can be as free and independent as he wants to - and agree with the departmental heads because he is looking at the data, which has no reference to his views on the law. If their report - due December 1 - comments on the law, it will be with reference to parliamentary intent. So the law is working well as parliament intended. Furthermore the report will note that police and CYFS procedures are also working well - because nobody is being prosecuted in court for light smacking. So no substantive changes will necessary

Latta is also not talking to lobbyists or the media about the review. He says:

I wish to announce that I have just appointed my cat, Jerry, as my new Chief Press Secretary. Please direct all media inquiries to him.

Well at least he has a sense of humour.And he drinks lots of coffee, which is good.

Dictator dicatates to the dictated

Well, by now you`ll all know that Herr Key has decreed that National will not support Acts smacking bill, which was drawn out of the ballot today. John Boscawen should postpone the debate on the bill's first reading until just before the election (because National would have been written off by then and is likely to vote for it), then Labour can get back in for one term with an increase in support for NZ First, reject the legislation and get booted out at the following election for rejecting the bill.

Meanwhile, the Treaty of Waitangi and democracy should be taught in all schools and a petition should be creatively drawn up relating to the Boscawen bill - and have it presented just before the bill is due for a vote in the house.

National ignores referenda,ignores select committee deliberations, now it opposes a bill its supporters want to be able to submit to a select committee on. Can we have our democracy back? Hope you are looking forward to the next few polls as well as I am.

Finally, if you voted for National at the election, you should ask yourself why. And watch NZ First rise in the polls soon if it gets its act together.

Cabinet has agreed to ask police not to uphold the law

Cabinet has agreed to ask police and Child Youth and Family to review their procedures to ensure good parents were treated as Parliament intended with regards to smacking legislation.

But if the law is working as parliament intended, as claimed by Key, why this move? Obvious, really, the law is not working as Parliament intended so instead of changing the law, the Government will change the administration of it. As Parliaments' intentions don't match the written law, that is the easier option rather than aligning intention and legislation.

So Parliament intended for a law to be passed but not enforced. Because enforcers were enforcing the law the enforcers have been explicitly told not to enforce it because Key doesn't want to relitigate the "explosive" smacking debate , preferring to put in "additional safeguards"

An independent person would assist in the review which would be completed by December.

In the media conference today Key said

If the law shows that through its application that New Zealand parents are criminalised or their chldren are taken off them for what can only be described as... minor or inconsequential smacking then the law has to be changed

I wonder what Erik and Lisa, whose kids were taken off them for what can only be described as minor or inconsequential smacking, think of that.

A report on the effects of the law would be brought forward from the end of the year to late September/early October and the police would continue with their ongoing reviews of the law.

Not good enough.

If you break the law we`ll make sure you don't get prosecuted

This is what I think John Key will tell Cabinet tomorrow.

He will advise that the law surrounding smacking should not be changed. Instead he will instruct police and CYFS not to prosecute or investigate cases of light smacking. [Update: well, not before they report every case of smacking to the Government]. This will not reassure parents because he has said this before and one parent got convicted for smacking, with others getting prosecuted.

Our panty-waisted Prime Minister just hasn't got the balls to change the law. We expect Parliament to pass laws in line with democratic interests, not pass policy. The referendum asked whether smacking should be a criminal offence, not whether parents should be prosecuted or investigated by police or CYFS.

Parents want to live within the law, not to break the law in the knowledge that they wont be hassled.What John Key is effectively doing is putting a used condom over the law to provide added protection. It won't work. It is also undemocratic as the public don't want that. They want to parent within the law and smack their children in the knowledge that such as smack is not a criminal offence.

If we can break a criminal law passed by Parliament with the explicit intention, after an overwhelming referendum ,that it will not be upheld, I guess we can break other laws too - perhaps small amounts of shoplifting will be fine, especially in a recession. After all shoplifting laws are working well, aren't they? And shoplifting, like smacking, can also happen in the supermarket.

Any other suggestions welcome.

Who said this. And when

The way to send a strong message on child abuse is to make the law clear and precise and then to police it strongly and vigilantly. This bill as it stands does the opposite. For me, a result that sees the criminalisation of parents for a light smack is simply not on the table.

Anyway, its not the "criminalisation" of parents that is the issue here. Parents don’t want to have to be looking over their shoulders or glancing sideways if they should smack their kid in the supermarket or the mall or wherever, wondering who has ratted on them to the police or to the CYFS. Nor do they want fear investigation or prosecution for an act that they dont consider criminal.

That’s what the law has done. The law needs to be changed. As David Farrar says, Parliament should not insist that a smack is a criminal offence if it lacks majority support for being a criminal act - or in this case one that has massive and sustained opposition. Criminal laws that that have opposition by so many people should be changed.

Boo-hoo Sue

Sue Bradford is already commenting on the results of the smacking referendum before results are even announced.

Feedback I've received from the public over the last few weeks tells me a lot of people feel pretty angry at the confused nature of the referendum question and the waste of $9 million of taxpayers' money this represents

Feedback I've been getting is that a lot of people are pretty angry that Bradfords bangs on about the law provides children from the same legal protection from violence as adults.

Now if she'd only replaced the word violence with correction, she`d be more accurate. But the word "correction" doesn't have the same violent audible soundbite on TV as the word violence does. Sue Bradford is about to get violently riding cropped by the NO voters and she doesn't like it.

Because the rights of the children should come first - except in Green policies like abortion and gay adoption.

Still needs help

A little girl saw her mum smacking her sister. She was only nine. She called 111. She felt like she needed some adult help.

Her parents don't recall that event. But they were dragged onto nationwide television by that daughter to state that to the nation. Now this daughter has dragged her own daughter into the issue. She is on the posters at Barnardos.

This woman wouldn't be the Barnardos staff member who authorised a letter to staff to say they must vote 'Yes' and are not allowed to vote 'No' in the current referendum on smacking? Surely not.

The woman is Deborah Morris-Travers, of The Yes Vote and has an agenda.

Who would have ever thought?

Morris Travers said her sister left home at 15, had a child at 17 and her mental health was " never good". She got clinical depression and committed suicide at age 35.

And Morris-Travers thinks there is a link between her sister getting smacked and killing herself. She said if her sister was not smacked it is possible she would not have killed herself. Her parents disagree. But Morris-Travers also got smacked. By the same parents. So how come she, as a former MP as well, is still alive?

Sunday Star Times smacking survey

The results are in from the Sunday Star Times alternative smacking referendum.

Among the 1600 people they sampled; 66% felt that the anti smacking legislation of 2007 should be reversed and 72% felt that smacking a child is acceptable. Of course many qualified this response with the comment that while a light corrective smack may be permissible, child abuse is not. Many respondents suggested that the referendum is ambiguous and does not address the real issue.

Vote NO – or NO vote?

It’s a shambles. I have just got in my mail today a voting paper from a government agency suggesting that I vote in a $9 million citizens initiated referendum, when Prime Minister John Key has effectively said not to bother because my opinions don’t matter and my vote will be disregarded. In a recession, too.

The question, “should a smack as part of good parental correction be a criminal offence in New Zealand” is not the best – but it is no worse than earlier referendum questions. Historically, citizens initiated referenda have been dismissed as irrelevant by Governments. But this one is different as it is the only time a Prime Minister has so publicly stated that my vote does not count before the voting papers have reached my letterbox, while funding promotion of a particular viewpoint through my taxes. In effect John Key has said that should anyone vote, the Government will pay the postage and vote processing, and then ignore it. In other words, don’t bother.

Non-binding referenda are in effect expensive and toothless nationalised opinion polls that have yet to provide citizens the power to alter public policy – while petitioners are charged $500 per question. Making referenda binding won’t help either – very small numbers of people could impose their will. That is exactly what would have happened in 1994 under a binding Act. Just 28% of registered voters bothered to vote on a referendum on the number of firefighters. There would have been protests had the Government been bound by such a referendum - which had no mandate and was essentially a taxpayer–funded industrial dispute.

Some blame Sue Bradford for the current referendum given she initiated the offending legislation. Others blame Kiwi Party leader Larry Baldock and Family First director Bob McCoskrie for leading the referendum charge, when it was not even their question.

I`ll let you know who is the culprit. Tomorrow, probably. And like most sensible people, I`ll be voting NO.

Key's English: The smacking law will be changed if it "starts not working"

John Key talks about the anti-smackling legislation in which he is happy for a law that he supported not to be enforced.

I've always argued that if the law doesn't work we will change it. If an overwhelming bulk of New Zealanders vote no then what that should do, I think, is give Parliament the strength of courage to change the law if it starts not working," he told Newstalk ZB.

In other words, if the law is enforced. But Key should know that the law has already started to not work. It's about time Key stopped to start not to not have the strength of courage.

Do you think a person who is taken to court for drunk driving should be let off if they say they were drinking coke?

Updated
Most people understand the above question and will say that a person should not be let off for drunk driving if they say they were drinking coke.

This survey, released by Barnardos, asks kids what researchers think is a similar question, in th hope that most people will give a no answer. Do you think adults who are taken to court for hitting a child should be let off if they say they were disciplining the child? The kid had to make up his or her own mind whether the question implied an excuse for abuse, or whether they think the question meant that the person was conducting reasonable discipline but was charged with assault of a kind that should attract sanctions.In short, bad question that unlike the drinking question, can be interpreted in multiple ways.

If they were disciplining someone else's child they never had a legal defence before the old section 59 law.If they were not disciplining at all they shouldn't be either. Nearly 52 percent of kids who were asked that question thought parents should not be let off. Fair enough. They probably didn't see it as a physical discipline implication without probing, which was probably the intention of the interviewers.

But in an attempt to twist the research further, they took comments from 0.6 percent of callers, who expressed a range of opinions. Those writing up the survey results did not specify the proportion of the 48, who thought hitting parents should not be let off court charges and those who should be. They asked questioned about whether kids thought they should be hit and reported them as to whether kids thought they should be disciplined. They reported that some kids explicitly said that some parents who hit children should themselves be disciplined. Note the language. No examples were given. Perhaps there weren't any and they made it up.

One kid answered the question and then tried to turn the question around to the discipline angle. She was then asked if she thought it was OK to smack. She said yes.Then the leading questions started. The surveyor said, what if something (perhaps a weapon?) was used to smack the kids with - was that okay? The child refused to answer that question so the interviewer then asked what she thought of smacks that cause bruises. The child wasn't happy about bruises. If she was happy about bruises one wondered what the next question would have been - a punch in the head? I guess she was one of the 52% recorded as believing adults should not be let off in court for hitting kids - even though she was OK with parental smacking.

One wonders why these surveys are actually done. They are unreliable, unrepresentative, and invalid. Pointless. One wonders why they go to all this bother to hook up kids, solicit them, and treat them like research prostitutes for political purposes.

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?"

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.

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.

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.