Tuesday, March 27, 2007

The Joy of... 4

OK, I am not going to back down on anything I have said in the past in the debate on the role of government in personal freedoms.

But this time around I am going to agree with TF, with Dave and Dana, and everyone else with whom I have crossed this sword.

The centrepoint is the debate on “the smacking bill”, a proposal to remove the following section from NZ law..
59 Domestic discipline

[(1) Every parent of a child and, subject to subsection (3) of this section, every person in the place of the parent of a child is justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances.]

(2) The reasonableness of the force used is a question of fact.

[(3) Nothing in subsection (1) of this section justifies the use of force towards a child in contravention of section 139A of the Education Act 1989.]

First, this law change is a “Private Members Bill”. This process allows for the House to consider non-government sponsored legislation. The promoter is Sue Bradford, a member of the Green Party, and a long time activist for womens’ rights, for the needy and oppressed.

Second, for some reason the Speaker (our equivalent of Pelosi) has not announced the Bill as a conscience issue. Hence there is a measure of confusion as some parties have allowed their MPs to vote by conscience while the Labour Party have “whipped” their lot to a party vote supporting the Bill. More on this point later.

Third, there have been consistent pollings showing a majority of NZers oppose the change. The latest have something like 84% against.

This morning’s Herald includes the following op-ed, one of the more enlightened pieces of commentary I have read thus far.
Michele Wilkinson-Smith: Bradford's own people will lose most in smacking law
The Smacking Debate
One of the great ironies of the anti-smacking debate is Sue Bradford's touching faith in the police and the justice system - and even more ironic given her former life as a protester and champion of the powerless, during which she certainly clashed with police on occasions.

I have two perspectives on the debate. As a mother of pre-schoolers I have my personal views, which have changed since I had children.

But whether I choose to smack or not to smack - or whether anyone does - isn't the issue. I know that as a middle-class woman in a happy marriage my chances of being prosecuted for smacking are practically nil.

I have another perspective. As a criminal lawyer who has both prosecuted and defended people charged with assaulting a child I think the repeal of section 59 of the Crimes Act will have disastrous and unnecessary consequences for a small group of people.

The people who will eventually suffer from the repeal of section 59 are the most vulnerable and powerless members of our community - and their children.

I say the repeal of section 59 is unnecessary because in my experience it is just that - unnecessary. I never lost a case which I prosecuted on the basis of section 59.

I drafted an indictment against a man who was convicted of smacking his 4-year-old son about five times on the backside with an open hand, leaving marks.

I think the jury convicted because the man smacked his boy too hard and because the boy was smacked not for a deliberate misdemeanour but because he soiled himself.

I prosecuted a man, a loving father, for using a belt on his mildly intellectually handicapped and very challenging teenage daughter after she damaged her bedroom.The jury were hugely sympathetic to the father but when I asked them in closing if they would not have intervened to stop the man had they been in the room at the time I knew they would find him guilty.

I saw the realisation dawn in their eyes. Not one of them would have stood by and let that happen "as a father's right", so they could not say it was reasonable discipline.

I've had far fewer cases as a defence lawyer, but I've never fancied my chances of going to a jury and saying: "Look, bashing that child with a jug cord was perfectly reasonable."

Of course there will be the occasional case where section 59 has excused parents who overstepped the mark, but these are not cases where a child has been thrashed or beaten or injured. I challenge anyone to find a case where section 59 has excused a real bashing that left a child injured.

In my experience of those sorts of cases, the section 59 defence simply isn't used. The accused denies the assault. New Zealand juries are not stupid.

Sue Bradford doesn't trust the New Zealand public so I find it amazing that she has so much faith in both the police and the justice system.

She is proposing to give a huge amount of discretion to individual police officers.

She expects them to wisely ignore the letter of the law. They won't. I know this and so does National MP Chester Borrows, with whom I worked and who was a superb, wise and compassionate detective sergeant.

The police may not, and I'm sure will not, prosecute every case of smacking, but they will be obliged to at least investigate - and therein is the harm. Picture this: a child at the centre of a custody battle comes back from an access visit. Mum questions the child: Did Daddy smack you? Has Daddy ever smacked you? The child says yes.

Mum takes the child to the police station. She is vocal and upset. "Investigate" sounds benign. It is not.

That child will be put through the evidential interview process. It's not a process you want your child involved in. Dad will be asked to go to the police station to make a statement.

All this will probably be good for lawyers. Probably no charges will be laid, but the child and the family will have been through a traumatic and damaging experience.

This scenario will happen without a doubt. It will happen over and over again and the children at the centre of Sue Bradford's concern will suffer it. The poor and powerless will be far more vulnerable.

Most police are honest and upstanding and we are lucky to have them.

Some are not. Some get caught up in a "means to an end" approach to criminal law. Some will use this legislation - and the discretion it gives them - for the wrong purpose.

It won't be me or people like me who suffer this. It will be the very people Sue Bradford has fought for in so many other ways.

The Government should forget party politics on this one. We are lucky to have an experienced former police officer, who also has a law degree, sitting in the House. He is saying, for many different reasons, don't give the police this much discretion. He's right, and we should listen to him.

* Michele Wilkinson-Smith is a lawyer

So, with no apology, I have made up my mind on this issue.

If I may, I want to accept the word of a senior Barrister. It seems that the present law is working, despite the persistent attempts to discredit it. I know that if my two kids were thirty years younger I would still discipline them in the same way - law change or not. That would include kicking my daughter from the middle of the street to the berm when she defied my instructions not to ride her tricycle on the road.

Now for the interesting and fun part.

Auntie Helen has been copping a huge amount of flak on this issue. She stated in the last election campaign that this legislation was unnecessary. Yet here we have the Labour Party under the Whips to support exactly that "unnecessary" legislation.

Who got to whom?

There were (strong) rumours that the Government was to promote urgency for the consideration of this Bill. That pleased Sue Bradford no end. It copped the Government more flak. Most particularly it added fuel to the "whipping" accusations and the rumours that a number of Labour members were going to defy the Party line and vote against the Bill.

So, there is something else in the background here; something with even more consequence than Bradford's "Smacking Bill". Why else would the Government team want to get this through the House in a matter of days?

This morning it was announced that the Government was dropping proposals to take urgency on the Smacking Bill.

Now that is a major backdown. Auntie Helen returns to the House today after sharing GWB's lobster in Washington.

What next? Will Helen order the Whips to be put away for an open conscience vote? I hope so. That would certainly see some sanity being brought to bear.

What is certain - this is going to fester for some time. Auntie Helen and her crew have made a monumental blunder. I suspect, with no direct knowledge, that there are other issues behind what has been happening within the government. If that is so, then Helen could do worse than to out the truth. One possibility is the prominence that the Greens have been giving to NZ's agreement to the Kyoto Agreement on global warming. There are certainly major political and financial consequences looming in that quarter. There are other home issues that Helen and the party have not handled at all well; individually not sufficient to cause a confidence vote but collectively there is that possibility and the Green's support for the government has been a bit flaky in the past few months.

Oh, the connect with the "The Joy of..." series?

For better or worse, this is what happens here when the government tries to change the rights of the individual without good cause, and without public support.

Look for Labour to crash in 18 months time at the next elections. I would guess there is a good chance the Greens will go as well. The Government will be led by the Jonkey, along with his jennyasses. And we might even see the Destiny Church in the House. Time to move...

Yeah, right.


News this afternoon tacks the Government's state of panic to Winnie the Pooh's NZ First Party. Seems (from what was said) that there is a potential split in their ranks. That could have serious repercussions for the Labour government given that W-t-P and his five are the mainstay of Auntie Helen's "confidence and supply" majority.

Hey! Aren't you Americans jealous that you live in a two party state? None of this kind of shenanigans in the background? :p

I see quite a lot of smoke there as well. I don't think that we can see the BBQ yet. Still more smoke to come. Then we might get to fry some sosses and steak.

I think that the Bill is going to fail. The sad thing is that it has gotten to the point where it has become a crisis for the government rather than a managed issue. Well, on their heads be it...


Interesting piece of news while driving to work. Sir Geoffrey Palmer interviewed about proposed law changes being promoted to "secure" the Government's Budget process. I know no more than that. You concentrate on traffic not radio reports in Auckland... Now this I will keep a very close ear on... Know here that "Budget" (actually named "Supply") and "Confidence" are the two pillars of NZ Government.

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