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Larry Baldock

The Real Story of the Anti-Smacking Referendum

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With the announcement last Monday by the Chief Electoral Officer that that they were beginning the process to hold a Citizens Initiated Referendum, the debate surrounding the controversial Anti-smacking law once again fired up. This time though, with a new twist, as the supporters of the law change directed their attack at the wording of the referendum, and the cost of the process.

This attack on the question is really nothing more than a desperate attempt to try to discredit the referendum in the hope that sufficient numbers might boycott the process and reduce the impact of the result.

In reality it is not the question that concerns them but the impending overwhelming “No” answer!

How the Question was formed

I believe that the vast majority of Kiwis understand that the referendum question, “should a smack as part of good parental correction be a criminal offence in NZ?” is asked in the context of the debate that has been raging in this country for the last three years at least. The Green Party press release dated 6th October 2003 announced they would draw up “their own Anti-smacking bill to stop parents physically punishing their children in line with United Nation demands.”

The anti-smacking name has stuck ever since, even though in its final form the new law should have been more correctly called the Anti-correction law.

Naturally therefore, when we were thinking of the appropriate question for a referendum, the word smack was logical.

The original question we submitted to the Clerk of the House of Representatives back in early 2007 was “should a smack in the context of positive parental correction be a criminal offence in NZ?”

As required by the CIR Act 1993, the Clerk published the question in the Gazette and advertised the question in all major papers with an invitation for anyone to submit their opinion on the wording of the question over a 28 day period.

Only two submissions were received. One from a couple who stated their opinion that a smack should never be a criminal offence, and the other from the Ministry of Justice. The Ministry’s submission raised four concerns that were considered by the Clerk in consultation with myself and anyone else the Clerk wished to take advice from as required by S9 of the Act. We eventually agreed to change the wording by replacing “in the context of positive parenting” with “as part of good parental correction.”

The CIR Act requires that the Clerk of the House ultimately determine that the wording;

(a) Shall be such as to convey clearly the purpose and effect of the indicative referendum; and

(b) Shall be such as to ensure that only one of two answers may be given to the question.

At the time the Clerk of the House was David McGee QC who was widely acclaimed as the most experienced and qualified Clerk in the Commonwealth. Upon his retirement as Clerk in 2007 to assume the post of Ombudsman he was given many accolades by MPs for the diligent way he performed his duties.

Surely it is inappropriate for the Prime Minister, Leader of the opposition and Sue Bradford to now be insinuating he did not do his job properly. Especially given that they did not bother to take the time to participate in the submissions on the question when they had every opportunity to.

The words “as part of good parental correction,” simply set the context of an appropriate smack, (reasonable force) rather than the kind of hitting or bashing that might be administered in an abusive (bad) parental situation.

I do not believe there is any justification for suggesting that the question is loaded and implies that good parenting means smacking. Apparently constitutional lawyer Mai Chen agrees, according to her comments in an interview with Mike Hosking this week on Newstalk ZB.

The obvious intent of the question surely is that in the context of good parenting where a smack is not abusive, should a smack be a criminal offence?

Another reason for our use of the word ‘good parental correction is that politicians supporting the new law have constantly been saying that this law was not going to affect ‘good’ parents. They had nothing to worry about.

The real purpose of the law was being hidden as much as possible during the whole debate, and as a result confusion exists amongst the general population about what the new law actually does. The real purpose of the ‘Bradford law’ was to completely abolish any form of physical discipline, for the purpose of correction. This, in addition to smacking, also includes taking a child, against their will, to time out. That is clearly contained in the purpose clause of the new Act, “…by abolishing the use of parental force for the purpose of correction.”

Criminalising of good parents

After some very confusing answers to questions from Sean Plunket on National Radio on Thursday, Sue Bradford finally admitted that it was true that any smack for the purpose of correction – no matter how light and inconsequential – was in fact a criminal offence. This came as a surprise to Mr Plunket, who, like many other journalists, had been assured since the beginning that no one was being made a criminal if they smacked their child lightly on the bum.

Despite the well intention attempt by John Key to amend the bill by confirming that the police may use discretion and not pursue prosecutions for smacking offences, the fact remains that we are now criminals in the eyes of the law if we use any form of reasonable force to correct our children.

My being criminalised does not depend on my being caught, charged and convicted. For example, if I slip into the corner dairy and steal a few items of food without detection have I become a thief and a criminal even though not apprehended by the police? An act is either criminal or it is not.

If I am convicted for my offences, my status then changes from criminal to convicted criminal.

This fact has been strenuously denied for a long time by the supporters of the law change as they have claimed there were never going to be large numbers of good parents criminalised by the new law.

So how should the referendum question be answered?

If people believe that any physical correction, even a light smack, is an assault on a child then they should vote “yes”, thereby supporting the law as it now stands.

If people believe parents should be permitted to smack their children for a corrective purpose without being criminalised and they want the current law changed then they should vote “ no”.

The cost of the referendum

When we launched the campaign to collect signatures it was with the earnest hope that the possibility of a referendum on this question might cause the MPs voting in favour of the law to reconsider. At that time, with 47 of the 48 National MPs opposed to the bill, the supporters only had a slim majority. After John Key’s amendment however, it was apparent that we would have to complete the petition to force a referendum.

The responsibility for the cost of the referendum rests with those MPs that refused to respect the voice of the people of NZ and went ahead and passed the bill into law on May 16, 2007. By then we had approx 165,000 signatures after 3 months of collecting. The great disappointment of seeing the bill become law, the approach of winter and the withdrawal of support from any National MPs who had been assisting in collecting signatures slowed our progress. By Feb 2008 we had doubled our signatures to approx 330,000. Then, when they were not considered to be enough, we redoubled our efforts and pushed on, eventually collecting 390,000 by our final deadline in May 2008.

When the Prime Minister Helen Clerk refused to hold the referendum in conjunction with the general election last year she involved the taxpayer in a much greater expense for the exercise.

Even though it will cost an estimated $8.9 million I remain convinced that the damage the new law will do to our families, communities and society as a whole, makes every penny spent trying to get parliament to recognise its mistake and amend the legislation as soon as possible, is a worthwhile investment in the future of our country for our children and grandchildren.