Pundit

That is a fantastic blog Tim, I don't think I can really fault anything you have said.

Your point about the majority/marching on behalf of 87% is what I kind of touched on just after the referendum.

http://www.pundit.co.nz/content/the-smack-is-back-0#comments

At the time I wrote a comment expressing how myself and many of the people I know deliberately abstained from voting.

We did this to lower the CIR’s percentage of the total population/legitimacy and most people I talked to believed it was a more effective way of saying yes than actually participating.

It is another case of those trying to take the moral high road really just trying to launch political careers and yes with vested special interests and narrow minds.

This whole issue has sickened me probably the most this year regarding NZ politics.

Still a case for binding referendums in an increasingly digital age on conscious votes is a relevant issue but has very little relation to these people.

Perhaps a 75% yes/no threshold on a 75%+ voter turnout could demand some form of binding action by a govt. But not as you say 87% of 54%

Great Post Tim

Stuart, with all due respect, that argument is bollocks. The general public is often not the best judge of an issue and any attempt to argue otherwise is to ignore basic human nature. The public responds emotionally and with a narrow, occasionally self centered, perspective. The government, love it or loath it, is elected represent all of society, especially the most vulnerable, and not just the part that makes the most noise.

I suspect that if you look at any of the great social changes that have occurred e.g. homosexual law reform which I am old enough to remember,  there were outraged squeals of protest. If the governments of the day had listened to the public not many of these changes would have occurred and our society would be all the poorer for it.

Stuart,

On what basis do you claim a consensus rejection? At best, as I wrote, supporters of the reasonable force defence can claim 30-40% are behind them. Maybe more, but the referendum doesn't tell us that.

As for elite meddling, how is it different from a government passing a law on anything else? Is all governance elite meddling? I'd say it's representative democracy, the very thing these people claim to be marching on behalf of. We elect politicians (elites?) to ponder, read bills, debate issues at length and represenent our views because few of the rest of us do those things. We elect their judgment and we should expect them to use it.

Disagree with those judgments, protest and vote against them, debate them here on Pundit... Some of them are terrible decisions. But I don't see how you can make out there's something especially insidious about this law.

For me, I'm happy with the law change. But that's not really the point. Whether you agree or disagree with the law, surely you don't support the organisers' dodgy tactics?

For all the squeals of outrage, the referendum showed not a noisy minority, but a substantial majority had considerable reservations about the anti-smacking bill.

By all means indulge your anti-democratic prejudices, but the public is not with you. The anti-smacking bill is not a great liberating instrument, and it has not, and will not result in a measurable improvement in statistics on violence against children.

A binding referendum would not be an issue if our leaders were not not blind, biased, deaf to reason, arrogant, opinionated, and , as usual, wrong.

I must disagree there Stuart. A binding referendum is always an issue in the context of representative democracy. However, in some circumstances (in the context of electoral reform for example) we consider that the issue at stake is, in its nature, an appropriate one to be dealt with through referendum.

The decision about how our society deals with child abuse is a fundamentally political one, rather than a constitutional one, and is exactly the sort of issue we have representative democracy for. Our elected representatives are charged with the responsibility to weigh up competing points of view and make a decision in the interests of society as a whole.

Even if this issue was an appropriate one to be dealt with through a binding referendum certain procedural conditions must be met to ensure the result of the referendum provides a clear statement of what the majority of New Zealanders want.

This referendum did not meet that standard. First, as Tim pointed out, far from a majority of New Zealanders came out against the criminalisation of "good parental correction" as child abuse has euphemistically been termed.

Which leads to the second issue, the question: “Should a smack as part of good parental correction be a criminal offence in New Zealand?” , contained a normative element "good", and therefore was fundamentally ambiguous. Some people may think it is good parental correction to whip a child with a jug chord, many do not.

In limited situations where there is an appropriate, usually constitutional issue, which meets certain procedural safeguards binding referendum can complement representative democracy. The repeal of s59 and dealing with the appalling child abuse statistics in New Zealand is not one of them.

Stuart

I would dispute your assertion that a substantial majority that had reservations against the repeal of section 59.

As Tim has stated it was a poorly worded question designed to get an emotive answer and still less than 50% of the public cared enough to vote.

If I understand your argument you are saying that government should only do what the majority of the public want all the time. Essentially you argue for a tyranny of the majority and I do not want to imagine what New Zealand would look like if that was taken to its logical conclusions in race relations, equality for women etc.

Tim - (the last post was a reply to Bob, & simultaneous with, not a reply to your last)

Consider the referendum: is 54% a statistically significant sample? If we sample 54% of a population, will 54% give us a result with a low margin of error? I believe that it will.  Is an 87% response in any way equivocal? I think we would find it is significant to two, nearly three standard deviations. This is a strong response. We may partly discount the sample because it self selected, and in part because the question was not impartially framed. But we cannot infer that the remaining 46% of New Zealanders were opposed to the referendum's conclusion, in fact as many as 50-60% of that 46% very probably concurred. In political terms, such a strong consensus as this is relatively rare, and ought not to be ignored.

The meddling elites are of course social elites, and their elites status rests not on training and experience or ability but access to power that substantially they hold in trust on behalf of their citizens. This power to make law is not trivial, and it must not be applied to trivial or inappropriate ends. One of the early kings, it may have been Edward the Confessor, explained that he "dared not set down too much of his own", law having a life beyond those who make it. Law was required to accord with the customs of the people and the prevailing morality of their culture. New Zealand MPs, by contrast, dare much. It is doubtful any nation matches us for sheer legislative logorhea, and this bill, which we are informed has made no difference to the number of arrests or court cases, is a particularly bad example of the phenomenon.

The use of smacking as a punishment is long established in our culture. It is not the first choice of liberal parents, and in most circumstances parents regret using it. But when it is administered with an open hand to the gluteus maximus, or to the palm of the hand, the chances of measurable damage are negligible. And sometimes it achieves its ends with an economy of time and distress few other discipline methods can equal.

It is not a trivial matter to open the culture of families  to police inspection. The mere ability to judge what would ordinarily be an unequivocally inoffensive use of corporal punishment represents a drastic inroad on the judgment and independence of families - and is consistent with a pattern of deculturation which I believe is adversely affecting our society. This results in the kind of disconnectedness and lack of social engagement described best by Robert Putnam.

That said, I do indeed have serious reservations about some of the organisers of protests against the legislation - some of the misuses of online resources relating to the Swedish study are pretty revealing.

Stuart, your argument would hold for a randomly selected sample but not here.

The sample that voted in the referendum was self selected, therefore we can assume that the people who did bother to vote were the ones that felt strongly about the issue. It is therefore unlikely that there is a low margin of error and that the sample is representative of the whole population.

An interesting (implied) definition of "voter" you've applied here - including in it those who don't/didn't vote :-)

It may be that we can only be confident that 30-40% of New Zealanders believe smacking shouldn't be a crime, how many then, can we be sure believe smacking should be a crime? 10-15%? Why should such a small minority hold sway?

I'm not (this time, anyway) getting into the good or bad of smacking, or the recent referendum, but this argument against it is a pretty poor one.

"87% said yes to a poorly worded question"

Tim, I think you`ll find out they actually said No.

@ Mathew J.

56% is a strong sample by any means. It would be more predictive were it randonly selected, but it is of a sufficient size that the laws of middle numbers are working fairly strongly; it is a significant proportion. The likes of a Colmar Brunton poll work with trivially small numbers, and to have any value at all they must be scrupulously random. But this poll included more than half the eligible population, it therefore has considerable predictive value, even with a degree of self selection.

There are indeed probably a  proportion of 'don't cares' and indeed people opposed. But given this sample, any statistician will tell you that the trend lies firmly against. If we use the sample to predict the result for the outstanding voters, even allowing for don't cares, those opposed, and possible sampling bias from the wording of the question, there is still no doubt that a strong majority oppose S59, and to pretend otherwise is either ignorant or disingenuous.

To extrapolate from the sample and assume that the remaining eligible voters broke 87% one way as those who voted did, would indeed be unsafe. But to try to write off a result this strong simply goes against the evidence. It is astonishing how many people are unscrupulous enough to attempt it.

Anyway, the march happened, and people voted with their feet.  By going to the malls, the beaches, the bush walks...anywhere but there!

It just goes to show how quicky the heat can dissipate.

You should not count on the issue going away, and the matter of abuse of process remains. Key is smoothing it over (his middle name must be 'low'), but the fact remains that a very inappropriate piece of legislation was passed by all the major parties, and in spite of a substantial indication of public discontent, the government is determined to stick with the error.

If MPs cannot behave appropriately over a relatively straightforward issue like this, how can they be trusted to represent us on more complex issues, like the economy? The simple truth is that they cannot.

We've been governed by a pack of arrogant bumbling fools for the last twenty years, and looking around at Hone & Rodney and most of the rest, it seems that no action has yet been taken to reverse this pernicious trend.

This trend surely explains why NZ now has half the per capita GDP of Australia. Of course, governance shouldn't make that big a difference right? But we also have twice the per capita MPs of Australia. More, it seems, isn't always better.

Stuart, it's a significant turnout, no doubt. But it's not the majority the march organisers have claimed, and a referendum is not the same as en election where it's clear what voters are voting for. Referenda are skewed by the people pushing them, who get to set the tone. And, as Matthew J writes, you're almost certain to get supporters turn out, but not necessarily a wider representation of voters.

I'm afraid you've fallen for the spin, as well. As I've written before, the law still allows for parents to smack - in certain circumstances. Hence the title of the post... The law simply removed the defence of reasonable force.

Police have always had the right to interfere in families if laws are being broken. There's no change in principle there. And finally the Putman argument seems simply bizarre to me. He's talked extensively about the community breakdown and the importance of collective activities for the good of the individual's health and wealth. How you can extend that to the right to smack is simply beyond my imagination, I'm afraid!

a referendum is not the same as en election where it's clear what voters are voting for...

You think it's clear what voters were voting for at the last election? I disagree.

As counter-intuitive as it might be (given National's support for the law change), I'd suggest a sizeable minority of National's vote was voting for them because they might do something over the smacking law. Another largish chunk was voting for them because they wanted Labour's policies, but a fresh face fronting them. And a bunch were voting for them hoping for substantial change around economic matters: spending and tax cuts, etc.

Was it clear that people voting at the last election were voting for higher ACC levies? Or abuse of urgency? etc.

Referendums are the pinnacle of transparency compared to (particularly MMP) elections.

No Tim, you don't get it.

The law in the court is not the issue. Have you not seen some of the blazing rows children had with their families when the change came through? I've seen quite a few. Smacking, so only it be safe and not excessive, is an established parenting tool. Interfering in functioning families is not a matter that falls within the competence of police or parliament. The fact that prosecutions have not increased is neither here nor there, except for establishing that the change was unnecessary, as well as illconceived. Prosecutions have not increased because the pre-existing law was perfectly adequate - there were no outrageous instances of abusers going free on a reasonable force defence.

You don't get Putnam? Some of the more recent stuff is on deculturation. Which communities show the greatest social disingagement, do you suppose? The old style self-selected ethnic groupings, or modern melting pots? In fact it is the latter. Nor is it race hatred which is the problem, (that's so last century - and Said got it backwards btw) it is a lack of communal agreement on core values.

When a government perversely legislates against the traditions and prevailing opinions of society, to no good end, as is the case with section 59, it is a deliberate assault on established communal values. Occasionally such a thing may be justified by some good end, but in this case it was wilfull folly.

I have not fallen for the spin. The government passed a bad law. A substantial majority of the public oppose it. The politicians and their media lackeys are of course infallible. The bad law remains on the books, and columnists line up to endorse the folly.

The fundamental virtue of democracy is as a process for building social assent. When politicians abuse and usurp that process, acting like satraps or kings, the public do not assent, and public confidence in government is further eroded. Current confidence levels in NZ MPs put them between child molestors and telemarketers - less popular than paedophiles but more popular than the telemarketers.

They have chosen to be universally loathed and execrated, and this also contributes to declining social participation.

We should replace most of them with citizen juries. It would reduce corrupt behaviours like selling off ACC, and it would be cheaper and more democratic.

Stuart; you and your lot of dopey reactionaries are still trying to argue for a law that has been misused by parents, in court, charged with child abuse. I am mildly surprised that Larry Baldock didn't want a CIR on provocation after the Weatherspoon conviction.

Some cut and paste from Barnardos website

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.

The section 59 defence has been successfully raised in cases where parents has been prosecuted for hitting their child with a bamboo stick, hitting their child with a belt, hitting their child with a hosepipe, hitting their child with a piece of wood and chaining their child in metal chains to prevent them leaving the house (media reports of these cases are attached to this document). These successful acquittals have all occurred in jury trials, where the jury has found that such actions have been reasonable, and therefore lawful, means of domestic discipline towards children.

In contrast, similar instances of corporal punishment have been found unreasonable by Court of Appeal, High Court and Family Court judges. Conversely, a smack on the bottom was not seen sufficiently serious to warrant conviction in the Court of Appeal case of R v Hende. Similarly different judges in the Family Court have ruled that a slap in the face and legs as reasonable discipline in one case (S v B), so as to defeat an application for a protection order, and unreasonable in another (C v C). These differing interpretations of section 59 by judges and juries illustrates that whilst the test supposes to be an objective one, that of “reasonable” force, consideration of the defence is almost inexorably intertwined with the decision-maker’s individual moral position on the issue of corporal punishment of children.

Stuart, I take your points about the importance of community support for the law and understand what you're saying (and what you say Putman's saying) about the mobile world we live in and a lack of shared values. Conformity of values means less social tension. But a) it's simply unavoidable given access to travel and migration these days, so we're going to have to figure out a way to deal with a lack of shared values and b) that tension has been shown to create wealth and spark genius. You know the old joke about the Swiss having 500 years of peace and only inventing the cuckoo clock while Italy had plenty of bloodshed, city state v city state and inspired the renaissance?

Actually, one of the reasons I support a small formal constitution is so that we establish some core values now that we can build on, as NZ is going to suffer ever-increasing social disengagement this century.

But your line on police not interfering in families doesn't work. We have any number of laws that permit state agencies to interfere with families. The sec 59 reform is nothing out of the ordinary. And you keep ignoring the fact that the law does not outlaw smacking when, to use your words, it's safe and not excessive. It specifically lists the times you CAN smack.

And, at the end of the day, we have a representative democracy. Politicians have to be careful not to get too far ahead of popular opinion, but they have to lead. Do you really want politicians who simply sway with the wind and don't have the courage of their convictions?

Graeme, in saying the election was a clear choice compared to the election, I meant that voters had a clear proposition to vote on - party A, party B, party C etc. The referendum offered nothing so clear.

My apologies - I had thought you were talking about the general case. If we had binding referendums - whether citizen-initiated or not - I think we'd know exactly what we were voting on (just as people in California did with, for example, proposition 8 in 2008, and the famous proposition 13 in 1978).

There are as many views on what inspired the renaissance as there are historians, and I'm sad to say that strife is usually favoured only by social Darwinists. If we take the strife argument at face value, we should expect extraordinary developments in Palestine, Iraq, Lebanon, Bosnia, and other war torn states. I don't see it myself.

Typical causes of the Rennaisance cited are: the sudden vulnerability of the nobility to gunpowder small-arms causing social change, the proliferation of new paper making technology, the battle of Lepanto reversing the fortunes of muslim empires, contact with China, the plague, the diet of Worms.

But a number of historians believe that the renaissance is itself a fictional construct, and that the late middle ages were increasingly progressive to a degree that renders the term Renaissance rather questionable.

Which being so knocks a rather large hole in utopian generalisations about the inherent wonderfulness of globalisation.