Another Election Year, another desperate bid from Family First to attempt to get s59 of the Crimes Act revoked. Indeed, if it weren’t for their recent slew of agitation against the reform of abortion laws, and side-campaign to attempt to ban pornography, you could well be forgiven for thinking they’re something of a ‘one-issue’ (or should that be ‘one trick’) entity.

What’s sparked this latest attempt at going back in legislative time by ten years was a speech NZ First Leader Winston Peters gave last Friday about getting serious on the recent wave of youth-crime. Winston’s mention of the potential desirability of dropping s59 in its current form was then seized upon by McCoskrie on Sunday as evidence that the latter’s longed-for Day of Reckoning and Repeal was shortly to be at hand; followed in short order by some malicious gremlin deciding to flagrantly misrepresent the Party’s stance on Wikipedia by attempting to proclaim that s59 repeal was now an NZ First non-negotiable coalition bottom line, and Sue Bradford going on the attack on this issue against Winston through the media yesterday morning. Oh, and somewhere along the way Winston clarified New Zealand First’s position on this issue as actually being to support a referendum about repealing s59 rather than just getting rid of it straight away.

So far, this is pretty much about normal for an Election Year. Some conservative group brings up an old gripe from the Clark era, gets quietly annoyed that their supposed ‘friends’ in the National Party have no actual plans to do anything about the issue, and then finds common cause with another electoral vehicle as a result. But what makes things different this time around is that with New Zealand First looking increasingly likely to be in a position of strong influence on whomever the next Government will be, there is now a rather heightened chance that something might happen.

It therefore behooves me to take a brief look at the ‘anti-smacking law’ and the history around this issue – not least because, as far as I can see, a number of voices on both sides of the resurgent debate on s59 are being openly disingenous and are therefore (perhaps ironically) in need of correction.

The first point about s59 that ABSOLUTELY must be made (because it’s generally where EVERYBODY – both Pro and Anti its retention – starts to get things wrong), is that section 59 does not, in point of fact, make it illegal to smack your child. Take a look at subsection (1). There, you’ll find a list of circumstances – which are, to be honest, pretty broad-ranging in their scope – wherein a parent is “justified in using force” in relation to their child. These include “tasks that are incidental to good care and parenting” [an exemption to a legislative ‘ban’ on smacking so broad one could feasibly drive the proverbial truck through it], as well as specific allowances in law for using force to prevent your child from injuring themselves [for instance, by touching a hot stove, perhaps], injuring another, engaging in criminal activity, or being offensive or disruptive. In other words, it’s a pretty broad list; and I feel pretty sure that most reasonable use of reasonable force in child-raising probably fits in somewhere in the above. 

Now where it gets complex is when we read subsection (1) in concert with subsections (2) and (3). Because here we find odd language about “force for the purposes of correction” not being legally justified – which flatly contradicts (and deliberately so) the allowable use of force as applies our children outlined in ss(1).

It arguably gets even worse when we add in subsection (4); which attempts to reconcile all of the above by setting out that the police have the “discretion” not to prosecute parents who smack [or use other force on] their children if there’d be no “public interest” in doing so due to the force involved being “inconsequential”.

Why is this a bad thing? Because our laws ought guarantee at least a modicum of certainty to those who are supposed to be bound by them; and through a combination of confusing language – and more especially, the relegation of what *actually* constitutes an offence against the act to the judgement of an individual policeman … this law fairly patently does not do that.

Now as it happens, I do think there’s a reasonably strong argument that the old s59 which Bradford’s bill sought to replace WAS in need of some reform. Under the previous legislation, parents had access to what was known as a “reasonable force” defence when it came to hitting their children. This might sound well and good, but in practice it allowed somewhat extreme disciplinary measures like whipping a child, even in such a manner as to leave disfigurement, to be protected actions under the law. I’d like to think that even committed pro-smacking parents would agree that that’s too far. Particularly when it later turned out that the “reasonable force” defence apparently meant certain parents thought they were justified in dealing to their errant offspring with an array of implements ranging from a jug-cord up to a full-on assault with a tent pole.

But if we look at how the ‘new’ s59 is worded, it seems an extraordinarily convoluted way of removing (or, if you like, redefining in a more tightly constrained way) a defence to a charge of assault or parental mistreatment. And this is before we even begin to consider the potential issues inherent in making the enforcement of this law a matter for individual police discretion (some of which we’ve already seen when it comes to the police discretionary power for low-level cannabis offences).

I’m therefore going to break ranks somewhat with many of the other voices on the liberal left and respectfully suggest that maybe Winston IS on to something here, and that there is, in fact, a case to be made for getting rid of the present section 59.

Although I almost certainly differ from most of the ‘conservative’ voices calling for the legislation’s repeal in also wanting something better – which does much the same thing – erected in its place.

Because even if we agree that there’s an argument to be made for the use of force as a regular part of parenting, there remains a troubling proclivity for some Kiwi parents to take this way too far – and wind up doing serious (even fatal) damage to those weakest among us entrusted to their care. The very real risk, if s59 is indeed replaced with either nothing or a much too loose piece of legislation, is that we will wind up giving a sanctified ‘claim of right’ carte-blanche to outright abusers and repugnant acts.

As noted above, even the comparatively straightforward precepts of the old, pre-Bradford section 59 already allowed if not encouraged parental uses of force that are difficult in good conscience to justify.

Which is, perhaps, why the previous Parliament who passed the bill in question into law did so so resoundingly. One hundred and thirteen MPs supported the bill (a majority of New Zealand First MPs among them, as it happens), because they knew that it would be a fundamental injustice to leave the law as it was. That doesn’t necessarily mean that they got it right when it came to putting forward a replacement enactment, of course; but it does mean we should think very carefully about what shall fill the void left by an abolished s59 before actually attempting to get rid of it.

This puts one in the mind of the noted conservative writer G.K. Chesterton’s famous maxim about never tearing down a fence before one has first understood why it was put up. I’ve often had pause to wonder whether some of the anti-anti-smacking people have actually bothered to consider this, instead of simply working themselves up into a feel-good lather about the dire depredations of much-maligned “PC GONE MAD”, which seemed to saturate the latter years of the dying Clarke regime without any necessity of facts.

In any case, I’m not entirely convinced that the repeal of section 59 will actually have a measurable effect upon the present wave of highly publicized assaults and robberies being committed by young people, which is what Winston appeared to be suggesting on Friday. If anything, this proposition might be regarded as being of considerably less importance for this matter than another policy of New Zealand First’s – the earlier announced coalition bottom line demand for an extra 1800 front-line police officers – that is almost certain to have vastly more impact.

It’s probably not surprising that the so-called ‘anti-smacking’ law remains inestimably controversial in certain circles. It’s a complex piece of legislation, beset with a number of obvious shortcomings. As a frequent democracy, we ought be able to have a mature discussion about whether the s59 that we’ve got is actually ‘fit for purpose’ – and whether there are better ideas out there with which to replace it.

I’m not necessarily wild about the way Winston has chosen to bring s59 back into the national political conversation this year; but it seems pretty clear that there are issues here deserving of consideration, and which provide obvious potential grounds for legal reform.

We can but hope that further dialogue in this area means we eventually get the law right; rather than continuing to live with a questionable compromise.