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Bradford wins complete s. 59 victory

  • May 2nd, 2007

Bradford and Clark must be howling with glee and derision. They’ve outlawyered  (not to mention out-politicked) opponents of their Bill. 

The ‘compromise’ words  have no legal effect.  They merely “affirm that the Police have a discretion not to prosecute“  – meaning that no new discretion is added,  only the existing rules and duties apply.

Worse – to escape prosecution the smack must be “so inconsequential that there is no public interest in proceeding with a prosecution“. Those words can’t have had competent legal consideration from any opposing lawyer. 

At the technical level “no public interest” is ludicrous.  Of course there will be some public interest in almost every incident. 20% of the population have a passionate interest in forcing the rest to change their child rearing beliefs. That 20% has made it illegal to smack.

There will of course be immense public interest in test cases, and passionate views that it is in the public interest to bring them. The more “inconsequential” the smack, the more deterrent impact a successful prosecution will have.

To disqualify any prosecution it should have said something like “no reasonable public interest”  or “no useful purpose would be served that outweighed the public interest in avoiding prosecutions that bring the law in to contempt”.

And then there is the contempt shown for our constitutional traditions. It is fundamental to our law that it is not for the Police to decide what the law is, or ought to be. It is their job to uphold it.

Now the leaders of Parliament are telling the Police to ensure that the courts do not get to consider where the law’s boundaries lie. Here is Parliament cold-bloodedly passing law it does not want enforced.

Any wonder why our criminals think the law is a joke, and we have among the highest levels of violent crime in the Western world. 

For years I was the only MP prepared to debate this issue publicly with Ms Bradford. I went to public meetings all over the land with her. She is good company.

But she has the ruthless Marxist view that the ends justify the means. She lied happily about the legal effect of the Bill, on the basis that it was in a good cause. Now she’s drawn  the rest of Parliament into legal deceit.

Comments

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Stephen, What do you make of Greg O’Connor’s assertion that if the legislation had passed (without amendment) the police would have been forced to prosecute?

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  • Graeme Edgeler
  • May 3rd, 2007
  • 11:51 am

There’s a slight possible effect for the lawyers out there – historically, prosecutorial discretion has been non-justiciable, now that it’s been legislated an enterprising lawyer with the right facts might have a chance.

And of course, that chance would have been much higher had the word “reasonable” been slipped in. It might be what you’d have preferred (I’d personally have gone with Key’s wording of a week ago), but he didn’t have the numbers.

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  • dave
  • May 3rd, 2007
  • 6:18 pm

Stephen,
There were only two politically achievable options for this bill: What we have now and what we had in the weekend. Both are bad but what we have now is better than what we had.

If you know of a third option which would have been both better and politically achievable, perhaps you could have drafted it.

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  • Matthew
  • May 3rd, 2007
  • 9:20 pm

Hi Stephen,

you should join the National Party before the next election: you would be a fine addition to their current formidible line-up.

This Bill has altered section 59 to proscribe smacking. No ifs, no buts. No wonder Bradford agreed. John Key will have to repeal the whole mess when he becomes PM next year. The current CIR petitions will make it an election issue.

I am also furious with United Future’s backdown. from a supposedly family party.

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  • ben
  • May 4th, 2007
  • 12:57 am

This is a devastating and very straightforward critique of the new wording. It is hard to see how Key could not anticipate how toothless this is. I have yet to see anything substantive from John Key since he became leader, he has been toothless, populist, and hard to distinguish from Labour thus far.

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  • Don
  • May 4th, 2007
  • 4:28 am

“you should join the National Party before the next election: you would be a fine addition to their current formidible line-up”

Odd comment Matthew. National are voting in favour of Sue’s anti-child abuse bill. He’s better off staying with his rich mates in Act, at least they seem to stand for something.

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  • dad4justice
  • May 4th, 2007
  • 10:11 am

Well done John Key , Klark and Bradford , you have handed more power to the state criminals employed by CYFS to break down the family . The dads names removed from the birth certificates will be the next peice of sick social engineering . This is bad law and the smacking fiasco will not stop child abuse .However, I have no doubts it will further promote parental alienation through false allegations and adversarial tactics for effect . The legal system are the big winners here -poor fathers and kids – as they are between a rock and a hard place . What a sick , sick country !!

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I have been on every march to Parliament against this bill and I wish to form another march on the 16th of May for it’s final reading! therefore since ACT is opposing this bill, will ACT go the full way and organise a march? Please email me if so, as I am still downloading pettitions from http://www.family Values.net and all those Parents still reeling from the turncoat John Keys and Helen Clarkes unholy alliance should be seen and be heard.

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Steven Franks,
good effort opposing the antismacking bill and showing that the “compromise” isn’t one- its a sell-out. As for you joining national it would be good if you could in order to get back into parliament to get rid of the very bad new section 59 law.

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Dave wrote:

“If you know of a third option which would have been both better and politically achievable, perhaps you could have drafted it.”

If I could interrupt, this, shamelessly stolen fron Gooner on Sir Humphreys, might be what you are after…

http://www.sirhumphreys.com/adolf_fiinkensein/2007/may/01/key_takes_bradfords_scalp_humiliates_clark#comment

“National to repeal “anti-smacking” legislation in 2008 – Key

National leader John Key said yesterday that if National wins the 2008 election it will change the “anti-smacking” legislation within its first month of office.

“We certainly believe this interference of the State in the lives of Kiwi parents is both unnecessary and unwarranted. The law is poorly thought out and ill-devised and National will immediately seek to reassure parents by amending Sue Bradford’s bill immediately we take office”.

Pressed on whether the reassurance would take the form of the reintroduction of Chester Burrows amendment, Key was tight lipped.

“It could take that form or it could take the form of a repeal of the whole daft law. I prefer the latter and will spend the next twelve months convincing my colleagues that this is the preferred option. Quite clearly there is no mandate for such a bad piece of legislation and I want my leadership of New Zealand to be defined by courage, not by socal engineering”.

The latest TVNZ poll had National governing the country at the next election along with Act which has consistently opposed the Bill.”

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  • dave
  • May 6th, 2007
  • 4:51 pm

Well. given that, why is National voting for the “whole daft law”. Answer that one please

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  • Stan from the US
  • May 6th, 2007
  • 5:39 pm

If the 83% of New Zealanders who oppose this neo-Nazi BS do not take to the streets in open defiance and in a unified radical act of civil disobedience that will bring this government to its knees then you all deserve to live like the slaves that you are.

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Lindsay asked whether the Police would have been obliged to prosecute without the amendment. The answer is probably, under their ‘zero tolerance’ domestic violence policy.
The amendment will therefore have an effect, but it was a pitiful effort that clearly was run past no competent lawyer with relevant experience.
People seem to think it creates a defence for inconsequential smacking. It does not. If the Police decide to prosecute it is spent. The court can not then apply inconsequentiality as a defence. That is solely for the Police.

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  • Mother of 7
  • May 7th, 2007
  • 9:57 pm

Thank you for this information. It is helpful to know where we will stand as parents. “People seem to think it creates a defense for inconsequential smacking. It does not…” Our children are too precious to risk losing to the state.
I believe, as others have suggested that John Key wants to distance himself from the “religious right” and that is why he has the support of all the National MPs.

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A pingback of interest
(Apologies tarnya’s tete-a-tete this was originally deleted by mistake)

http://tarnya.wordpress.com/2007/05/07/whether-to-smack-or-not-that-is-the-question/

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  • Danni Woods
  • May 16th, 2007
  • 3:45 pm

So it seems to me that most people object to this bill on either of two grounds;
a) They want to retain the right to smack, often but not always on religious grounds;
b) They see it as the state interfering with how individual and/or families run their lives.
As for a) can people not contemplate the possibility of raising children without smacking? Is smacking so ingrained amongst society that we feel it is a right? And for those who claim the biblical spare the rod perspective – should the bible be taken literally so that the rod must be a smack with the hand or an instrument? Or would some other non-smacking form of punishment suffice? If the bible is to be taken that literally then perhaps we need to bring back stoning for homosexuals because that’s in there too.
And for b) that’s what we elect a government to do – set rules for society that determine how individuals within that society should act, and rovide punishment for those that don’t follow those rules. For example I’m sure there are many drivers who would believe that they are perfectly safe driving at a speed beyond that set by government, and who feel that the imposition of a set limit is interfering with their ability to act in a manner they see as being fit and safe. Yet we accept that rule as being for the greater benefit of society and therefore more important than allowing the individual to act as they believe is appropriate. The same theory applies to this bill – society will be the benefactor if we have a society where we are able to open our minds to the possibility of discipline that doesn’t involve smacking.

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  • Danni Woods
  • May 16th, 2007
  • 3:52 pm

And a P.S.
Stephen Franks states that “It is fundamental to our law that it is not for the Police to decide what the law is, or ought to be.”
But hang on, that means the Police should prosecute everyone who drive at 51 Km/h, but they don’t. And they should prosecute everyone who makes a tackle on a rugby field, because that constitutes an assault, but they don’t.
Or perhaps we should have a review of all laws so that there is absolutely no discretion allowed by the police at all in any instance.

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