There’s a point to be made on this whole ‘Anti-Smacking’/s59 debate which New Zealand First has brought back to the limelight, that I don’t think I’ve seen anyone else making.
The reason why it’s passed ‘below the radar’ thus far [with the sole exception of an article penned by a certain errant renegade penman a few months back], is because it’s actually a ‘liberal’ argument which just so happens to bolster a ‘conservative’ position. Therefore, neither ‘side’ have really sought to draw upon it.
And it’s this: At the moment, the way s59 works is that what constitutes ‘reasonable force’ under subsection (1) of the law is subjective – and the decision on whether a parent gets prosecuted is pretty much entirely a matter for the discretion of Police [see subsection (4)]. Now, on the face of it, this might appear eminently reasonable. There are perhaps legitimate quibbles to be had with Police operational guidelines determining what’s a crime rather than the black-letter law of Parliament – but that is another issue.
As it stands, there’s another area of law wherein Police have an incredibly broad power of discretion about whether or not to prosecute somebody – and that’s low-level cannabis possession. You might be forgiven for thinking, given my previous background, that this is something I’d be massively in favour of. And to a certain extent, I guess I am. It’s in everybody’s interests for folk who might happen to be snapped with a tinny or a fifty to not be clogging up our nation’s court system after all.
But a look at the actual statistics resulting from this low-key ‘discretionary-de-facto-decriminalization’ approach is illuminating; in that it adduces quite the disparity along racial lines in who gets let off with a pre-charge warning or other lack of serious legal consequence, versus who finds themselves in first The Cells, and then The Dock.
Unfortunately, the New Zealand Police have not exactly been forthcoming in response to my own previous attempts to get data off them about how various cannabis offenders may or may not wind up with different outcomes on the basis of their socio-economic background, and other such factors. So it’s difficult to truly substantiate how much of a wider problem this might be.
Although we already know that it’s not just cannabis-law enforcement where Maori often wind up having a rather different experience of the criminal justice system than other New Zealanders; with even the New Zealand Police themselves admitting they’re often subject to “unconscious bias” when it comes to Maori.
With that in mind, when it comes to the sorts of situations s59 was designed to cover, even a moment’s cynical consideration serves to suggest that an articulate upper-class chap in a suit standing at the door of a flash home in a well-heeled suburb is probably going to have a better chance of convincing a policeman who turns up at his door that nothing’s amiss, as compared to an ordinary working-class man living through no fault of his own in a glorified garage Out West.
My point, then, is that there are very real reasons to be concerned about any law whose application hinges almost entirely upon the discretion of an individual person – and their own best judgement as to what words like “reasonable force” mean. Particularly given that the historic way we test these sorts of things is to err on the side of caution, bring somebody before a judge and jury, and ask the latter to decide on which side of the legal ‘grey area’ an alleged offender’s conduct falls [c.f cases of force used in ‘self defence’].
And that’s presumably the ‘chilling effect’ which NZ First MP Tracey Martin was talking about in her televised discussion [I hesitate to call it a ‘debate’] with former Greens MP Sue Bradford on Q&A on Sunday. The concern some parents have that they’ll somehow fall afoul of an overzealous policeman whilst doing something that’s theoretically still allowed by law, and find themselves put to all the time, expense, and potential public-shaming of having to defend themselves against a perhaps unnecessary prosecution.
It’s perhaps easy to write that scenario as fear-mongering on the part of New Zealand First; but the legal analysis provided by flashy law-firm Chen-Palmer on whether parents were being criminalized for utilizing relatively light force for the purposes of correction … does appear to suggest that some are.
Although despite this, I am not entirely sure that I would call New Zealand First entirely vindicated over this issue.
Tracey’s comments on Q&A appear to suggest that NZ First wishes for greater clarity in the law, whilst still legally prohibiting parents from engaging in the sort of brutal conduct with horse-whips and the like which lead to the law’s enactment in the first place. That’s fair enough, and I would even go so far as to suggest it’s difficult to argue against [unless you want smacking legally prohibited entirely – which is definitely NOT what the s59 bill was sold to us as doing].
But in that case, it would surely make greater sense for New Zealand First to put forward our own amendment bill to deliver this greater clarity – rather than potentially adding to the murkiness by calling for a Referendum which might result in the extant s59’s repeal with no clear view as yet as to what may replace it.
Either way, it seems curious to me in the extreme that the ‘side’ of politics which is usually so ardently suspicious [whether rightly or otherwise] of policemen and laws which can be ‘flexibly applied’ on the basis of race or class … are instead pretty emphatically adamant that the law we’ve got is problem-free.
Are they right to be enthusiastic about what we have at the moment? Depends what you prioritize. Certainly, the argument has been made from a number of quarters that child-abuse rates in New Zealand remain endemic regardless of s59’s passage. [something which I personally view as being fairly directly tied with the ongoing deterioration of economic outcomes for many thousands of New Zealanders thanks to three decades of worsening Neoliberal misrule]
Ordinarily, this is where I’d make my level-best attempt at penning a strong conclusion.
But with the very real possibility that New Zealand First’s increased salience on the political landscape this year will make for an actual re-referendum on the subject … it’s fair to say that any ‘conclusion’ reached on this issue is very much a tenuous one.