Legal Beagle by Graeme Edgeler

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Legal Beagle: If we only had time

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  • Steve Withers,

    I'm a fan of dmoecracy, but THIS petition has finally - after over 20 years - brought me down on the side of those opposed to citizens initiated referenda. At best we have had one that deserved any attention - the very first one on the fire service.

    The rest have been based on ignorance (the current one) and motherhood and apple pie. Of course we support the victims of violence.

    But this petition has me particularly excited because everything to so with it is so wrong. The lies told to get people to sign. The cynical misrepresentation of the rea lchange that was made to the Crimes Act. That (apparently) 390,000 Kiwis signed this petition should be occasion for mourning that so many among us are ill-informed and prepared to act on their apparent ignorance.

    I've blogged on this today. It's shameful.

    Auckland • Since Mar 2008 • 312 posts Report Reply

  • Ian MacKay,

    "*blink* First, perhaps there are always multiple issues on which the Government of the day (whatever colour rosette its wearing) should be embarrassed over."
    Craig: Of course there are issues for which a Government should be held to account. But this issue is a devious murky one which is an underhand way of apparently caring about the family first but really manipulating people. There are so many countries that simply totally banned hitting kids. No debate. No reaction so why such an issue in NZ?

    Bleheim • Since Nov 2006 • 498 posts Report Reply

  • Graeme Edgeler,

    At best we have had one that deserved any attention - the very first one on the fire service.

    Wasn't the first CIR basically "do you like firefighters?"

    And I agree that the law and order one was stuffed, but the 99 MP one was perfectly sensible as a referendum question (I did vote against). The problem is that there was no public debate over it - if you think the $120,000 limit in the EFA is low, well the limit for a CIR is $50,000. If a properly-informed public wants a 99 MP parliament, I don't think we should foist a 120 seat one on them, just because we think we know better.

    The lies told to get people to sign.

    What lies?

    That smacking children, previously legal, is now illegal? No - that one's true.

    That parents who smack face the prospect of being investigated, arrested, charged, or convicted? No - true as well.

    That they will go to prison for smacking their children? Well that's a lie, but was anyone really claiming it?

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Matthew Poole,

    Graeme, how does that square with the use of that defence having to be tested in court, though? I guess it's just the semantics of "innocent until proven guilty", right?

    Steve, URL for your blog entry?

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Gareth Ward,

    First, perhaps there are always multiple issues on which the Government of the day (whatever colour rosette its wearing) should be embarrassed over.

    Absolutely, I have no issue with the referendum being called, or timing it around an election year, politically charged as that may be (although am fairly certain of my vote on it).
    But my unease around single, very specific policy points (particularly where there is any taint of partisanship or politicking) being included on a general election ballot remains, regardless of whether that policy statement could be read as pro or anti any particular party. THAT'S my argument for not bundling it in - of course some may say it's not a strong enough argument to spend a few milion dollars extra on, and fair enough.

    Auckland, NZ • Since Mar 2007 • 1727 posts Report Reply

  • Craig Ranapia,

    Hey Craig, just out of curiosity when confronted IRL does the bluster go away and all we are left with is an unattractive whining gay guy with a big mouth?

    Tom. Thanks for proving my point. You should, however, leave the bitchy dish to the unattractive gay guys. You suck at it, and not in a fun way.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Jeremy Eade,

    I think graeme has done a great job of explaining the rules. Do the rules need changing? Almost certainly.

    The real distaste fo this is we are talking about bringing back violence to children. Go smack the first person you see on the street and see what happens.

    auckland • Since Mar 2008 • 1112 posts Report Reply

  • Graeme Edgeler,

    There are so many countries that simply totally banned hitting kids. No debate. No reaction so why such an issue in NZ?

    I can't be sure, but maybe they were honest about it?

    Yes, we know that you don't beat your children, and that children who are lightly smacked and no more turn out fine. However, there are some people who go too far, who use the defence in the law to do far far worse. There are children being injured and killed because as a society we accept that some level of force is acceptable against children, and for as long as we have something in our law that says any force is okay, people will look at that and some of them will take it far too far. We need to let everyone know that children are unbeatable, and the only way we can effectively do that is forbidding all force. We're sorry, but the lives of children are at stake here, and we're going to do all that we can to make sure as few children suffer through child abuse as possible - even though it means prohibiting light smacking. The vast vast majority of parents raise their children in a reasonable, measured way, but some don't, and we're going to make sure they realise there time is up.

    If that was the line, they would have gotten a lot more public support. Instead they lied and said they weren't making smacking illegal, or that smacking was already illegal, and accused those who disagreed with them of supporting (or being) child-beaters.

    Plus, in Sweden at least, when the law was first introduced it was in the family code, not the criminal code, and did not even have the prospect of criminal sanction.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Graeme Edgeler,

    Graeme, how does that square with the use of that defence having to be tested in court, though? I guess it's just the semantics of "innocent until proven guilty", right?

    Not just the semantics. The police can also look at the matter and say - oh yeah, he had a legal defence for "kidnapping" that guy - he was properly placing him under arrest.

    It's also the same legal process for getting off because you didn't actually do it. How would this square with the defence of I know he's dead, but I didn't kill him having to be tested in court. If you're justified, you're justified, whether it was a jury or someone else who says you didn't do anything wrong.

    Steve, URL for your blog entry?

    The link above the reply button on his post will take you to Steve's blog...

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Jeremy Eade,

    "Yes, we know that you don't beat your children, and that children who are lightly smacked and no more turn out fine."

    I think we're still defining what "fine" is.

    auckland • Since Mar 2008 • 1112 posts Report Reply

  • Deborah,

    Hey Craig, just out of curiosity when confronted IRL does the bluster go away and all we are left with is an unattractive whining gay guy with a big mouth?

    Ouch! I doubt that Craig needs anyone to defend himself, but Tom, that's pretty much out-of-line around PAS. Insult someone's arguments all you like, but not the person themselves.

    New Lynn • Since Nov 2006 • 1447 posts Report Reply

  • Tim Michie,

    Whatever the cost of the referendum, it seems a hiding to nothing to me:

    If the question is 'Should a smack as part of good parental correction be a criminal offence in New Zealand?' and good parenting doesn't fall into these clauses:

    1. Every parent of a child... is justified in using force if the force used is reasonable in the circumstances and is for the purpose of:

    a. preventing or minimising harm to the child or another person; or
    b. preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
    c. preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or
    d. performing the normal daily tasks that are incidental to good care and parenting.

    2. Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
    3. Subsection (2) prevails over subsection (1).

    (As Southerly David noted and included "The word 'correction' in this context means punishment intended to rectify behaviour") then whatever the referendum's result that argument of what other aspect of good parenting needs a blow to make it good.

    To me, this isn't the first referendum question, like online newspaper surveys, that almost pathelogically don't seek to answer the issue in question...

    Auckward • Since Nov 2006 • 614 posts Report Reply

  • Paul Williams,

    Graeme, I can't help but wonder if your support for the reform isn't colouring your perspective here.

    Leaving the specific issue to one side, I don't think holding CIRs at the same time as the general election is a good idea regardless of what they are. The general election is already a massive collection of referenda, holding a CIR risks diverting attention from all these matters to one matter potentially of limited interest outside a particular interest group (remember the firefighters, should a general election play second fiddle to the IR issues for one profession). I realise there's a cost with not holding CIRs at the same time, but frankly the greater 'cost' is the risk of the tail wagging the dog.

    Sydney • Since Nov 2006 • 2273 posts Report Reply

  • Tim Michie,

    Seconding Deborah on her point.

    Auckward • Since Nov 2006 • 614 posts Report Reply

  • Ian MacKay,

    Graeme:"Yes, we know that you don't beat your children, and that children who are lightly smacked and no more turn out fine. However, there are some people who go too far, who use the defence in the law to do far far worse. There are children being injured and killed.... etc" (Dont know how to indent italisise previous quotes??)
    I heard in the early days that the issue was quite clearly spelled out. Simple honest repeal. The clever (devious) people high-jacked the issue and it became, and is, the "Antismacking Law". Hence the petition wording.
    I also heard in a radio interview that they would really like it to be a full "no smacking our kids at all!" just like in many European countries. But NZ was not ready for that so the Repeal was as far as we can go - for now.

    Bleheim • Since Nov 2006 • 498 posts Report Reply

  • Craig Ranapia,

    The real distaste fo this is we are talking about bringing back violence to children.

    Bringing back? I don't know about you, but the classic 'time out' sure strikes me as a classic - and stunningly effective -- form of psychological abuse. Seriously, what is a time out other than using the psychological trigger of physical isolation and emotional withdrawal to sanction misconduct and re-enforce desirable behaviour?

    And I've never 'smacked' a child, but am not particularly proud of the occasions I've lost it and reduce one to tears through a full-on screaming fit. Just because my temper doesn't express physically, doesn't mean it's not potentially abusive and damaging. I just don't see how niceness is something you can legislate for.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Matthew Poole,

    Wasn't the first CIR basically "do you like firefighters?"

    I was rather too young (14 at the time) to vote on that one, but that's a very, very simplified version of the matter. "Do you think Roger Estall is an insurance industry stooge who wants to save his pals lots of money at the expense of public safety?" would've been equally accurate.

    As for the semantics, a "justification" as you put it isn't an automatic way out of prosecution. If it were, she of the riding crop and cane would never have ended up in court. Similarly the cops up on assault charges for spraying and beating a prisoner in a cell would be exempt because police officers are permitted to use force in the execution of their duties. So, clearly, a justification isn't an automatic pass.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Kyle Matthews,

    Personally I don't think our elections are too complex, and people should be able to tick who they vote for, and tick what they feel about one or two other issues, without getting confused.

    And if they do get confused about that, then I suspect their vote isn't going to make much sense to me with or without the referendum, so I don't see why we should spend millions more to get a quarter as many people voting in a referendum.

    Since Nov 2006 • 6243 posts Report Reply

  • Matthew Poole,

    Ian, you use the <qutoe></qutoe> (correctly spelled) tags to enclose whatever you're quoting. That handles the indent. Putting two _ characters either side of the text you want italicised does the trick.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Jeremy Eade,

    "I just don't see how niceness is something you can legislate for.'

    That still doesn't mean you can't legislate against violence. Tell me IYHO has the 1980's NZ gay legislation helped make this country a friendlier place for our gay brother and sisters.

    We can ony try.

    auckland • Since Mar 2008 • 1112 posts Report Reply

  • Lewis Holden,

    voter turnout in CA elections is crap, especially for off year ones (makes it even easier to play this game)

    It is, but it's still better than most of the US - (http://elections.gmu.edu/voter_turnout.htm).

    Elections should be fought on ideas - not with voter suppression tricks

    I still fail to see how this is a "suppression" trick. In 1999 a CIR on the number of seats in Parliament passed overwhelmingly, even though Labour said they were opposed to cutting the number of MPs. It hardly caused any suppression of the centre-left vote, even though the major parties of the left opposed it.

    Auckland • Since Feb 2007 • 21 posts Report Reply

  • Jeremy Eade,

    The wider issue surely is do referendums at election time detract from the even debate of other just as needy issues.IMHO.

    Yes, we seem to sadly have to revisit this debate nationally.

    No, it doesn't need to be highlighted above the complexity and volume of information we are waiting to recieve from new leaders as an election looms.

    auckland • Since Mar 2008 • 1112 posts Report Reply

  • Graeme Edgeler,

    Graeme, I can't help but wonder if your support for the reform isn't colouring your perspective here.

    I always wonder if that is the case, but I'd really like to think it isn't. I know my support for election finance reform didn't stop me taking issue with arguments that were arrayed on my own side.

    Have I really taken a strong position over whether we should hold this at the election? I do think deliberately timing the referendum to ensure a low turnout is anti-democratic (as some here have suggested). And if it's held other than at the election, I've stated that that will have been at the option (and expense) of the Government, and not because of force of circumstance.

    You do point out that there are arguments for separating the two. But I note that those aren't the arguments that have been advanced by the Prime Minister, and (like with smacking) maybe there'd be a little more sympathy for the position if it was being honestly articulated.

    The general election is already a massive collection of referenda, holding a CIR risks diverting attention from all these matters to one matter potentially of limited interest outside a particular interest group

    I really doubt that this would happen, here particularly. First, generally, the spending limit for those wanting to campaign on the referendum is $50,000. And in the specific instance, the "no" camp knows it's going to win. Thirdly, whether the referendum happens at the election or not, it is going to be an election issue.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Robyn Gallagher,

    Ouch! I doubt that Craig needs anyone to defend himself, but Tom, that's pretty much out-of-line around PAS. Insult someone's arguments all you like, but not the person themselves.

    Ditto on Deborah's comment too. I was shocked at Tom's person swipe at Craig. This is not what PA System is about!

    Raglan • Since Nov 2006 • 1946 posts Report Reply

  • Paul Campbell,

    yes! Tom: play the ball not the man - we want to hear your IDEAS

    Dunedin • Since Nov 2006 • 2623 posts Report Reply

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