NZ referendum to decide child discipline law
Updated
New Zealanders are about to vote on Friday on whether or not parents have the right to physically discipline their kids. They will start casting postal votes in a referendum on the country's controversial anti-smacking laws. But to most outsiders this exercise in direct democracy seems somewhat strange, and whatever the result, the politicians have said they have no intention of changing the law. But that hasn't dampened the passion on either side of this rather awkwardly worded question.
Damien Carrick from Radio Australia's Law Report takes an indepth look at Friday's referendum in New Zealand, and begins by asking law professor Murray Geddis what's the question?
Presenter: Damien Carrick, Radio Australia's Law Report
Speaker: Murray Edridge; Chief Executive Barnardos, New Zealand; Bob McCoskrie, National Director, Family First New Zealand; Andrew Geddis, Associate Professor Public Law, Otago University, New Zealand
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GEDDIS: The actual question is whether a smack as part of good parental correction should be a criminal offence in New Zealand. It arises out of a change of law a couple of years ago, which sought to remove a defence of reasonable force for the use of disciplinary purposes, that met with a fairly wide, or quite large-scale opposition from some groups who felt that it was interfering too much with the parents' right to raise their child as they saw fit. So it's an attempt to put pressure on the government to rescind that law change.
CARRICK: Ever since the law changed, back in 2007, 'smacking' has been one of the hottest issues on New Zealand's national agenda. Supporters say the legislation sends out a strong positive message and removed a loophole that led to regrettable jury verdict. But critics say the legislation criminalises good parents.
MCCOSKRIE: Government-funded groups have bought into this ideology of the anti-smacking, and it's just completely flawed, and New Zealanders aren't buying it, and, Damien, we've had a lot of international interest, because I think the world has looked at New Zealand and said, 'There's a plucky bunch of parents in New Zealand who just aren't putting up with this agenda from the UN, and this ideological battle against the role of parents.'
EDRIDGE: And the opponents of the law have claimed that our Child Protection Agency has now been focused on removing people's children as a consequence of a smacking complaint, that the police have acted in a very heavy-handed way as a consequence of a smacking complaint. We don't see any evidence of that happening. I think that's raising anxieties for parents in New Zealand, that are unfounded.
CARRICK: Murray Edridge is the chief executive of Barnados New Zealand. He supports the legal status quo and is urging his compatriots to 'Vote Yes, for a law that's working'.
EDRIDGE: The reason the law changed in the first place was that we had laws in our society that said you couldn't hit another adult, you couldn't hit a staff member in your place of employment, you couldn't hit an animal, but you still had provision to hit a child as long as the force was deemed reasonable in the circumstances.
CARRICK: Now New Zealand police just recently released a review of police activity since the enactment of the 2007 laws; what did that report or review state?
EDRIDGE: We had as part of that report, some commentary provided by the Deputy Commissioner of Operations, Rod Pope. And what he said is that 'I am confident in saying that this latest review again shows the amendment to the law has had minimal impact on police activity. It continues to be business as usual for us, and police continue to use their discretion and commonsense in their decision-making around child assault events.' It was a very important part of the law change to give police the discretion to act where they thought it was appropriate, and actually they had the discretion not to act where they felt the incident concerned was very minor or inconsequential.
CARRICK: But that's one interpretation of the review. Family First, which oppose the removal of the reasonable force defence, say this police review shows that anti-smacking laws are a complete waste of time; it fails to catch actual child abuse or child abusers, it wastes police resources and time, and it does target non-abusive parents, because there are a lot of investigations going on.
EDRIDGE: I think what we've found to date is that we would differ on our understanding of the impact of the law change to Family First. We haven't seen the evidence that they quote as reality, around the criminalisation of good parents. What we do know is that if we're serious about changing the attitudes towards children in New Zealand, if we're serious about having an impact on the significantly high rates of child abuse, child homicide in the home, and damage to kids, then we need to start somewhere. And having a law that provided some level of protection for people that hit their children just seemed completely contradictory to the efforts to try and remove violence in our society, and therefore start to deal with issues around child abuse. The claim will be that in the last two years we haven't seen child abuse statistics reduce, and that's probably correct. But it's about social change, and social change takes time. And the sort of things we've been comparing this law change to, is things like the anti-smoking legislation, things like the wearing of seat belts, which were substantial social changes in our community, but they didn't happen overnight, they happened over time.
CARRICK: Murray Edridge, chief executive of Barnardos, New Zealand. But what does and doesn't constitute 'good parenting' is highly contestable. To sell its message, the No campaign has enlisted a high profile TV personality as well as a prominent Maori child advocate who for years has worked with at-risk children.
BEV ADAIR: I'm Bev Adair, a Maori mum and nana of Ngapuhi descent. I'll be voting No in the upcoming referendum on the anti-smacking law. I've been a victim of a lifetime of abuse, but I know that a smack is not abuse. In fact I would have loveed to have had a loving parent who correct me with a smack rather than the verbal and sexual abuse that I experienced with adults who had no regard for my welfare ...
SIMON BARNETT: Hi there, I'm Simon Barnett, and a very proud Dad of four beautiful girls. Now let me make it quite clear: I oppose child abuse in all its forms, that this law treats a smack on the bottom from a loving parent, with child abuse of the very worst kind, and it's put good parents raising law-abiding and responsible kids in the same category as rotten, abusive, nasty parents. Kiwi parents know the difference between a light smack and child abuse, and you know what? We should be given credit for this.
CARRICK: Spearheading the No campaign is Bob McCoskrie. He's the national director of Family First, which he points out is an apolitical national advocacy group rather than a political party like its namesake here in Australia.
He maintains that the 2007 anti-smacking laws have fundamentally changed parenting in New Zealand.
MCCOSKRIE: What we've done is, we've criminalised a particular action which has been used by parents for generation after generation, has been used effectively, successfully, in a non-abusive way, has helped to raise good functioning kids, suddenly we've demonised the technique. And our argument is, you don't demonise a technique you demonise the parent who uses it wrongly. We've got to understand the difference.
CARRICK: So to be perfectly clear, you reckon that smacking can be best practice?
MCCOSKRIE: Oh, the research shows that. There is not a single bit of research that shows that non-abusive smacking by good parents within part of good families raising good kids, is harmful to children. And look, New Zealanders just don't buy the fact that a smack is child abuse. We've seen prosecutions through the courts for simple things as a smack on the leg, a smack on the arm, a couple of smacks on the bottom, we've even had a father who was prosecuted for - a child wouldn't get out of bed, so he went up and gave him a shake of the shoulders and said, 'You need to get out of bed'.
CARRICK: A prosecution or a conviction?
MCCOSKRIE: A prosecution and conviction. We had another case of a family who had a difficult child, went to a Social Service agency, admitted that yes, sometimes they'd used a smack as part of their correction, and they were immediately referred through to Child Youth and Family. And what we're doing is, we're actually wasting our time and resources targeting good families rather than getting alongside them and supporting them, but that's because we've put the benchmark so low on what is child abuse. And it's really hard to comment on some of these cases, because what happens is that claims are made, and a lot of these parents are simply pleading guilty, simply to get the court case out of the way. They take the, I guess the punishment, which tends to be a fairly - community service, or anger management courses, they just want it over and done with. They simply don't defend themselves because they don't want to go through the whole public profile, and one of the cases you're going to mention is a father that did defend himself.
CARRICK: That's James, or Jimmy Mason from Christchurch.
MCCOSKRIE: Yes. Now he claims that his four-year-old said, 'I'm going to ride down this hill again', and the father said, 'Well I don't want you to get injured, don't do it.' The four-year-old looked as though he was going to go and do it anyway, so the father gave him a flick on the ear and said, 'You stay here'. Which he did. Then somebody rang the police, six cops turned up, but they saw no evidence of any damage to the kid, and they said 'OK, on you go', and then some witnesses came along later, or one witness, and said, 'No, I saw the father punch the kid in the face', and what happened was that the police put the two actions in one charge, so there was a flick of the ear, and a punch in the face. Now as far as I'm concerned, a punch in the face, I don't care how stressed the father is, a punch in the face of a kid is completely unacceptable and you throw the book at them. But the jury were told that even if they didn't think there was a punch in the face, if they thought there was a flick on the ear, that was illegal under our new law. Well Jimmy had admitted that he'd flicked the ear, so he was found guilt.
CARRICK: So you're saying he was found guilty of flicking...
MCCOSKRIE: Possibly, we don't know. That's the problem, because the two actions were in the one charge. The Jury may have said, well we don't think he punched but we know he flicked, because he admitted it, and so he was found guilty.
CARRICK: The judge in that case said the case would have been decided in exactly the same way irrespective of the changes of the law back in 2007.
MCCOSKRIE: Based on the face-punch yes. If it had been a face-punch yes, it would have been; if it had been an ear-flick, possibly not.
CARRICK: But then I guess that comes back to what the jury believe, and the evidence presented by the prosecution.
MCCOSKRIE: Yes, that's right. And I guess that goes back to the original section 59 of the law, was that you always have a few cases that raise eyebrows or that are not clear but what these government funded groups like Barnardo's and Plunkett and the Children's Commissioner, what their real agenda is, they want to ban smacking. They've always wanted to.
CARRICK: I've got to put it to you, people like Barnardo's and some of the other supporters of the 2007 laws, they are the agencies, the groups, who deal with the tragic reality of dysfunctional families. And they would say that this is a useful, important law.
MCCOSKRIE: Well 80% of New Zealanders are saying no, it's not. And people simply don't buy that a smack is child abuse. The problem is not smacking, it's rotten parents who go too far, CIF reports, and UNICEF reports say that neglect is five times more common than physical abuse. A child is at risk when there's drug and alcohol abuse in the home, when there's family breakdown, when there's non-biological adults living in the house, one thing we do agree with Barnardo's and Plunkett is that we do have a problem with child abuse. The problem is since the law changed two years ago, the rate of child abuse hasn't changed.
CARRICK: Bob McCoskrie, can I put it to you, in an ideal world, wouldn't it be better if no-one used physical force? Wouldn't that be the best situation?
MCCOSKRIE: Well it would be nice if the police didn't have to use tasers and didn't have to use batons; it would be nice if we didn't have to lock people in cells as well, but let's move into the real world.
CARRICK: But there are many, many parents who don't use physical force on their children.
MCCOSKRIE: Oh, and all credit to them.
CARRICK: So maybe it might be best to have all parents go down that path.
MCCOSKRIE: Well if they introduced a law to ban time out, we would be just as vocal opposing it. Because it's the bigger issue of the government and the UN telling parents how to parent and telling them that they know better how to parent their kids than themselves. Any technique, whether it's a smack, whether it's time out, whether it's a telling-off, or withdrawal of privileges, can all become abuse. Locking a kid in a room for two hours without smacking them, is that OK? No, it's not. Is telling a kid off and telling them they're useless, never going to amount to anything, and you wish you'd never had them, that's not a smack, but is that abuse? I think it is. I was a social worker in schools, I dealt with a lot of kids who were completely crushed by those statements into their lives. So let's get real on this. The problem is not the technique, the problem is the parent and the way it's administered, and let's target the rotten parents.
CARRICK: Bob McCoskrie, national director of Family First.
This week, New Zealand's referendum on the legality of smacking children. It's a citizen-initiated referendum that's not binding. In other words, whatever the result, the New Zealand parliament is not required to implement the will of the people.
And New Zealand Prime Minister John Key has made it crystal clear he thinks the current law works perfectly well. So, how did New Zealand end up with such a curious system? Professor Andrew Geddis is an expert in electoral law at Otago University. He says back in the 1990s when pressure was building to reform the political system and introduce proportional representation, politicians hoped to convince the electorate that fundamental parliamentary overhaul was unnecessary. Instead, they promoted the idea that the electorate could have a more direct input into government through citizen-initiated referenda. But of course the politicians didn't want to have their hands tied.
GEDDIS: The politicians felt that to put binding referenda in place may tie the hands of government too much, it may commit the government to have to do something that the government either doesn't want to do, or the government thinks is just completely unworkable. So the idea was you'll get a vote, your vote will give a strong message to the government which the government will either choose to follow or ignore; if it ignores it, it may pay a political price. So in essence it works as a glorified opinion poll, except the question gets written by the people who are seeking the answer.
CARRICK: What do you reckon of the language of the question on slapping?
GEDDIS: There are two points: first of all it asks whether a smack as part of good parental correction should be a criminal offence. So automatically it assumes that a smack is part of good parental correction, which you could argue is fairly leading. And the second point is that it's been structured so that in order to vote for smacking, you've got to vote No. In order to oppose smacking, you vote Yes. There are studies in the United States that show that it's much easier in a referendum context to get people to vote No. There just seems to be something in their psyche that opposing orNo votes, which appear to support the status quo, are easier to get than Yes votes. So because of this desire to have people vote No, and effectively say smacking should be allowed, it's quite confusing what you actually have to say.
CARRICK: New Zealand has the citizen initiated referenda; we don't have anything along those lines here in Australia, do we?
GEDDIS: Not citizen initiated, as I understand, though you do obviously have to have a referendum if you wish to change the constitution. In New Zealand, we're kind of the opposite: we've given citizens the ability to force these referenda to be held, with no binding legal force, but there's no requirement in New Zealand to have a referendum if you want to change the constitution in New Zealand, which seems ironic. In theory, we could get rid of the Queen tomorrow as our head of state, by a simple Act of Parliament, or any other aspect of our constitution could be changed by simple Act of Parliament tomorrow.
CARRICK: What do you think about this system of citizen initiated referendums? Do you think it's a good, useful system?
GEDDIS: In the New Zealand context I don't really think it makes much sense. Certainly in the past, all the examples I've given of referenda being held, they just really a) probably weren't necessary and b) they just haven't changed anything. And of course every referendum costs a fair chunk of money. The smacking one's going to cost $9 million, and the other problem I have with the referendum, is that they appear to promise something they just don't deliver. They tell the people that 'You're going to have your direct say, you're going to put your views to the government.' At the end of it, nothing happens. At the time the Citizen Initiated Referenda Act was passed, one of our ex-prime ministers, David Lange, described it as 'a fraud on the community', which I think is probably a fairly accurate description. I think it cheapens asking the people to participate.
CARRICK: Professor Andrew Geddis, an expert in electoral law at Otago University. New Zealand's national postal referendum commences on Friday.
