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July 13, 2009 | by  | in Features | [ssba]

Yes. Maybe? Yeah. Yes. I think so. Yes.

You’re staring at your ballot paper. Two empty boxes stare back at you. Yes or No? Your conscience is confused. And rightly so.

The upcoming citizens’ initiated referendum (CIR) asks voters whether or not they believe a smack, as part of good parental correction, should be a criminal offence in New Zealand.
It should be a simple choice: yes or no? But the reality is quite the opposite.

The referendum is intended by its organisers to gauge the New Zealand public’s opinion of the two-year-old Crimes (Substituted Section 59) Amendment Act-the so-called “anti-smacking”, or child discipline, legislation.
However, behind the veil of the term ‘anti-smacking’, and the media’s lack-lustre coverage of the debate, lie much broader issues to do with child discipline and the status of children in New Zealand society.

Ultimately, this referendum should have little to do with whether or not you think smacking kids is okay. What this referendum should ask is whether or not the New Zealand public believes that the new law is working, as was intended by Parliament and the supporters of the law change.

A reasonable change?

The passing of the S59 Amendment Act in 2007 by Parliament-with a majority of 113 votes to 8-saw the demise of a parent’s defence of “reasonable force”.

The old section 59 of the Crimes Act 1961 stated that “every parent or person in place of a parent of a child is justified in using force by way of correction towards a child if that force is reasonable in the circumstance.”
The new law clearly states that the use of force for the purpose of correction is unjustified, giving New Zealand children the same legal status as adults and animals against the use of force and physical assault.

The substituted section 59 stipulates a number of purposes for which a parent is justified in using force “the force used is reasonable in the circumstances”. These purposes include preventing or minimising harm to the child or another person; preventing the child from engaging in conduct that amounts to a criminal offence; preventing the child from engaging in offensive or disruptive behaviour; or performing normal tasks conducive to good parenting.

Prior to the amendments to section 59 being passed by parliament, concerns were raised by both opposition MPs and members of the public that the new law would result in good parents being prosecuted for lightly smacking their children. As part of the cross-party negotiations that occurred before the bill’s passage, subsection 4 was added to affirm the right of police to use discretion when deciding whether or not to prosecute parents. In the event that an offence is considered “inconsequential” and there is “no public interest”, police will not proceed with a prosecution.

In 2007, prior to the child discipline law even being passed by parliament, a petition was started by the bill’s opponents, calling for a referendum to be held on the so-called ‘anti-smacking’ law. Lobby groups and members of the public were making calls for the ‘anti-smacking’ law to be repealed before they had even had a chance to see the law in action. By law, a Citizens Initiated Referdum (CIR) must be held if ten percent of registered voters sign the petition calling for the referendum. This referendum must be held within a year of the petition being presented to parliament.

A legitimate voice

A rigorous campaign is currently being undertaken by the Yes Vote Coalition, a partnership of organisations including Barnardos, Plunket, Save the Children and Unicef, calling for New Zealanders to vote yes in the upcoming referendum to ensure that the law remains as it is. Their main message is this: “Vote yes for a law that’s working.”

Yes Vote spokesperson Deborah Morris-Travers says many of the organisations involved in the Yes Vote Coalition have 
been supporting the amendments to section 59 since Sue Bradford’s original member’s bill was introduced to Parliament in 2005. She says these organisations are “committed to ensuring that children are protected in the law.”

What sets the Yes Vote Coalition apart from what Morris-Travers calls the “pro-smackers”? Given the calibre of the organisations involved, and their long-standing reputations in New Zealand communities, Morris-Travers believes their referendum campaign has greater legitimacy, particularly in the eyes of politicians and the media.
“One of the things that was really important in the debate last time around, particularly for members of parliament, was an appreciation of the fact that we are offering services to families and communities up and down the country,” Morris-Travers says.

“I think that’s the single biggest difference between us and the pro-smackers…they’re not in the business of service delivery, they’re conservative advocates. They’re not people who are working in communities to build stronger families.”

Is the law working?

Given the law has only been in place for two years, it’s difficult for the public to judge whether the law has been effectively implemented. Furthermore, when the law was passed it was agreed that the law’s implementation, police activity under the law, and public attitudes towards it, would be reviewed after the law had been in place for two years. This review is scheduled to begin later in the year.

“It does seem premature to be having a referendum on such a controversial issue when the formal review hasn’t taken place yet,” says Morris-Travers.

“I’m hoping that the review, to some extent, might be the last word [on the issue]… Hopefully the review, once and for all, will reassure people about how the law is being administered, and that it’s quite sensible.”
Morris-Travers says that the referendum question suggests that good parents are being criminalised for smacking their children under the current law.

“They’re not. The police release statistics every six months, and those statistics show very clearly that they are concentrating on more serious cases of assault on children,” she says.

“Where they do prosecute for acts of minor physical discipline or assault, it’s usually because there’s other stuff going on in the home, there may have been other incidents of family violence…the parents may have been previously warned about their treatment of their children.”

Kids are human too

The child discipline law is not simply about protecting children from violence and assault. In many respects, the removal of the defence of reasonable force gives children the same rights as adults to protection from physical assault.

“It is a human rights issue, and when we uphold the rights of children, we uphold the rights of all of us,” Morris-Travers says.

The United Nations Convention on the Rights of the Child, which New Zealand has ratified, asserts the right of children to their own physical integrity and protection from physical assault.

“It’s all wrong for us to have a law that discriminates against children and makes them the only group of people in our country where if they’re assaulted, there’s a defence for doing so,” Morris-Travers says.

“I think it’s really important for us to grant our most vulnerable citizens the same protection as every other group of citizens.

“It is a massive social and cultural change for us to view children in a different way, but it’s really important that we do understand…that children are people now, that they are citizens with their own rights, and that…when we nurture them appropriately, we all benefit.”

Morris-Travers believes there is a generation gap when it comes to attitudes towards child discipline. “One of the things that we witnessed in the debate last time around was that there was string opposition from grandparents, because they felt that they were being told that they were doing things wrong. That’s really just because we’ve moved on, we know more things about child development and parenting than we did 40 to 50 years ago,” she says.

“We have to acknowledge what we now know and put that into our parenting practices…With new parents coming along, the change will increase in pace and in acceptability.”

Organisations such as Plunket and Barnardos have experienced a high demand from parents for information about parenting reflecting, Morris-Travers says, the beginnings of the culture shift in how New Zealanders are choosing to parent.

Public education fail

The change to New Zealand’s child discipline laws has not been followed up by an intensive public education campaign about what the law means, and its implications for parents.

Morris-Travers says that in many of the 24 other countries where they have changed their equivalent child discipline laws, governments have initiated public education campaigns to inform people about the law.
“When we were advocating for the law change, we were asking for the law change in combination with public education about the law change and continued investment in positive parenting programmes,” she says.
“The public education never happened, probably because the bill originated from the Green Party, and so the government didn’t invest in the public education that was needed. It’s unfortunately left a vacuum in terms of public understanding about the issue.”

Organisations like Barnardos and Plunket have been left to fill the education gap. Furthermore, the news media, despite being the public’s first port of call for political information, is not often a reliable or accurate source of information on these sorts of controversial issues.

“The media, because it’s driven by a whole series of commercial imperatives, its primary concern is to actually sell news, to create news to a certain extent,” says Victoria University Associate Professor of Media Studies Tony Schirato.

“So what [the media] needs to do-in a sense-is to prey on and make use of the sensational, the dramatic, the over the top. The question of accuracy or what is useful is not really an imperative,” he says.

“The imperative with most of the commercial media is what can get people’s attention really quickly, what is dramatic, what is going to get people to watch.”

A one-sided argument?

Morris-Travers has been frustrated by the way in which groups campaigning for a ‘no’ vote have been able to grab the media’s attention.

“Because we are credible and responsible organisations, we’ve based our campaigns on evidence, we’ve been respectful in the way that we’ve spoken to the media about the issues, we haven’t gotten personal about the opposition,” she says.

“It has meant that our campaign has had a different look to it. What has happened on the other side is that they’re not constrained by needing to rely on evidence…they can be as outrageous as they want to be, and they are outrageous in what they claim.

“They are very often making claims that have no basis in fact and that means that they can grab the headlines and grab the media attention. That has meant that they’re very often out there quite prominently, and more prominently than what we are in spite of our credibility.”

This is not a new phenomena. Dr Schirato says it’s not surprising that the bill’s opponents received the majority of the media’s attention.

“They make a lot of noise, and if you make a lot of noise, you’re going to get some kind of attention for the simple reason that you’re newsworthy,” he says.

“I think one of the things about this particular sort of issue is that the people making most of the noise, the people speaking the loudest, and also the people claiming to speak for the people are always going to get a certain amount of attention because, in a sense, it’s a good story.”


Since Sue Bradford’s private members’ bill to repeal section 59 was drawn from the ballot in 2005, the language used to debate the bill and its implications for parents and children has revolved around the term “anti-smacking”.

“The media seized on the term the ‘anti-smacking law’ and what’s actually happening with the law is that people who lightly or occasionally smack their children are not being prosecuted,” Morris-Travers says.
“The law is really about setting a standard, the law is about letting children live free from violence, and that includes corporal punishment, but they’ve really simplified the issue.”

Dr Schirato believes that the media’s use of the term “anti-smacking” was never meant to ensure there was a sensible or reasonable debate about the law.

“I think it was meant so this would become an issue. The framing was meant to hyperbolise this, to make it dramatic, to make it more than itself-that’s the whole point about commercial news coverage,” he says.
Despite the news media’s distortion of an issue by framing it in dramatic terms, Schirato says they continue to do so because it provokes a response from the audience.

“This gets people angry, it creates passion, it creates drama,” he says.

“That’s what the news outlets are after, they’re after an emotional response to these things, which is why I think it was framed the way it was.”

A non-issue?

John Key has already publicly stated that he has no intention of changing New Zealand’s child discipline law, no matter what the outcome of the referendum. Phil Goff has also distanced himself from the debate. Is there really any point to this referendum?

The referendum question itself doesn’t deal with the substance of the law. Morris-Travers says that this is “probably a good thing.”

“It’s going to make it a lot easier for politicians to ignore it because the question’s so stupid.”

Schirato agrees. “The fact that the actual question has been framed in a ludicrous way that completely disqualifies it from any objectivity, and any notion of the objective, means that it kind of looks stupid.”
Dr Schirato says the “anti-smacking” debate is past its “use-by date” in terms of being a newsworthy story for media outlets.

“People have a certain amount of emotionality, and then they get bored.”

“I think the story now is that it’s a huge waste of money,” he says.

“These stories only last for so long. People are going to get all het up about Michael Jackson, and then in two weeks’ time it’s gone. And it’s the same with this kind of story.”


About the Author ()

Editor for 2010, politics nerd, panda fan and three-time award-winning student journalist.

Comments (11)

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  1. Thanks for posting this information.

  2. Bob says:

    “It is a human rights issue, and when we uphold the rights of children, we uphold the rights of all of us,”

    So what about the human rights of few weeks old human beings, may be killing/aborting babies should be a concern too? No? Too inconvenient? okie dokie

  3. Peter Manglethwaite says:

    Ummm. What? I’m pretty sure that the author never said you should be able to post nataly abort. Although, I’m pretty sure she’d make an exception in your case, Bob.

  4. Gibbon says:

    But then of course your entire point comes crashing down when you realise that you are being hypocritical in saying that unborn children should be protected but actually-born children shouldn’t be.

  5. VoteTheDay says:

    So what the result will be like of this referendum? Will the smacking be forbidden once and for all? Predictions are accepted here –

  6. Bob says:

    > you are being hypocritical in saying that unborn children should be protected but actually-born children shouldn’t be.

    Oh yes I guess smacking is as bad as aborting your children. You lot make sense.

    Child: dad why am I here?
    Dad: well, the morning pill didn’t work, we forgot to use condom, and we did consider aborting you but the anti-abortion outside the clinic really scared us.

  7. Bob says:

    “The law is really about setting a standard, the law is about letting children live free from violence, and that includes corporal punishment, but they’ve really simplified the issue.”

    Wow, we make people criminal to simplify the issue? Oh great

  8. If this is the Bob I think it is, I’m still waiting for you to clarify those six convictions you said were applied injudiciously. The link’s on the left…

  9. The ACTOR says:

    I challenge thee, Bob, to a dramatic monologue off.

  10. Chips says:

    What the Hell.

  11. Liam Nub says:

    Hey guys can you post this stuff as your facebook status so i can like it

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