John Key, the Anti-Smacking law, and the New Zealand Constitution

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As readers will be aware, the vast majority of those who voted in New Zealand’s recent referendum  on section 59 of the Crimes Act voted for change. They voted for the decriminalisation of light smacking as part of correction. Currently, subsection 2 of this law explicitly states that nothing in the Act permits the use of any force as part of correction. It is, according to our law, a crime to use a smack as part of correction.

The responses – and the comments leading up to the referendum – from some of the small number who wanted the referendum to have a very different outcome has been interesting, to put it gently.  The vocal propaganda site Yesvote, concerned about the prospect of re-de-criminalising smacking, described how awful this would be by saying “Turning the clock back is a retrograde step.” Given that retrograde just means putting things back how they were, this is not the most profound statement I have seen on the subject! In other breaking news, circles are round.

Using other equally strange tactics, the same site reproduced media comment calling the voter turnout “low,” in spite of the fact that it’s one of the most popular referenda the nation has ever seen in its history, and those who voted “no” alone outnumber those who have ever voted for a winning political party in the general election! Ken over at Openparachute actually claims, in spite of the view of those who forumlated the new section 59, that smacking isn’t even illegal!

So much for mind boggling spin and misinformation. Some facts are not fodder for dispute, and they are:

1) Subsection 1 of the new law does allow force only when it is incidental to good care and parenting, however,

2) Subsection 2 is inserted as a clarification to remove doubt, stating that nothing in subsection 2 may be interpreted to permit any force for correction.

Subsection 2 is the important part, insisted on by those formulating this law who wanted to ban smacking. By removing force for the purpose of correction from the scope of the exceptions/defences available to the charge of assault, all force used for correction is rendered a crime with no defence.

Any comments that deny this will be deemed not to have even reached first base, on the grounds that they have missed the fundamental facts and my reply will be to refer you back to read the legislation again.

In the wake of the clear referendum outcome, John key’s latest excuse to ignore the outcome is to repeatedly claim that he will not ignore it, while not acting on it. If you’ve followed the news over the last couple of days, you might think “But wait, didn’t he say that he was going to act on this to protect parents?” Yes he has said that. I commented on it recently when I said that only a law change is morally acceptable here. What I want to introduce here is the possibility of an undermining of the New Zealand Constitution. New Zealand doesn’t have one document called “the constitution,” but we do have a body of constitutional legislation (e.g. the Bill of Rights Acts, the Treaty of Waitangi Act, the Electoral Act, etc), which considered together can fairly be called our constitution. There are a couple of crucial constitutional principles that I have in mind in this post:

1) The Rule of Law

2) The separation of powers

These principles are very closely related, actually. The rule of law can be contrasted with, say, the rule of a king (where a King can rule by his own will), and in New Zealand it draws on another important constitutional principle, the Supremacy of Parliament (the principle that only Parliament, when acting as a legislative body gets to make laws). It means that the word of a ruler – or even the word of all politicians for that matter – is not law. It is not a ruling in court, it is not even (in any formal sense) a legal opinion (not that a legal opinion is binding, but you get the idea). We are not obliged by any of these things. We – and our leaders – are obliged by the law. This has all kinds of implications. The Prime Minister could not say, for example, “when the Prime Minister lies in court, it’s not illegal.” It’s not for him to decide, he is subject to the same laws as the rest of us, and all are equal before the law.

The principle of the separation of powers is similar in that it makes a fundamental distinction between the right to rule, and the right to enforce law and make decisions that determine who has and has not broken the law. A Member of Parliament – even the Prime Minister – cannot intervene in a court case if he doesn’t like the way a judge rules, and change the outcome. If he/she thinks that a person should not be prosecuted for committing a crime because they are definitely guilty, but the crime is trivial, the very most that he may do is seek a law change in parliament. He may say whatever he likes about what should and should not be a crime, but his opinion belongs only to himself and has no binding power beyond that.

I think – undogmatically at this stage – that John Key is running the risk of undermining these principles. Not in any overt revolutionary, hang-the-judges-and-let-me-drive-this-thing way, no. But here’s what has happened – there are two things.

FIRSTLY, John Key, in response to the clear result of this referendum, has told the public that he is acting on what they have said. Now, what they have said is that smacking as part of correction should not ipso facto be a crime. But what Mr Key has proposed is that Police and Welfare staff should be advised that “they should not investigate or prosecute parents who had lightly smacked their children.”

This clearly doesn’t change the law, so the smack in question is still a crime, but the Prime Minister is advising Police not to prosecute that crime.

SECONDLY, a Bill was introduced into Parliament today by the ACT party to specifically address the very thing that the referendum showed: That parents do not want light force used for correction to be a crime anymore (read about it HERE):

A bid by an Act Party MP to change the law that bans smacking is doomed because National will vote against the bill in Parliament.

John Boscawen drafted the member’s bill, which would make it legal for parents to lightly smack their children.

It has been in the ballot since March and was drawn today.

…..

Having the bill on Parliament’s agenda offered Mr Key an opportunity to change his mind about leaving the law as it is after the referendum result which showed nearly 87.4 per cent of voters do not want a light smack to be a criminal offence.

He did not take it and is standing by the decision he announced on Monday, which was to strengthen assurances that the police and welfare authorities will not prosecute parents who lightly smack their children.

To make things worse, some members of the New Zealand public are simply muddled about what it means for something to be “criminalised,” and are telling people that this move actually means that smacking isn’t a crime. At the link I posted earlier, Ken claims:

However, the Prime Minister has, I believe rightly,  recognised the result indicates there are still parents out there who are afraid that the current law could criminalise their parenting behavior. He has proposed measures, not including law changes, to address that concern.

Perhaps we need a government financed campaign to explain to New Zealand parents just what our current law says. Alongside that information of the actual operation of the law would also help.

The police reviews have been quite clear in showing that parents are not being criminalised.

The fudge is obvious. Law does not criminalise action when the action occurs. The law is written down ahead of time, criminalising behaviour that people may or may not engage in at some point in the future. What the police do is not to “criminalise” behaviour – this is to ignore the separation of powers. The Police prosecute acts that are already criminal. Indeed, the police could not prosecute behaviour unless Parliament had already criminalised it. Something is criminalised by lawmakers when they write laws that make actions crimes. Criminalising behaviour is not a role of the judiciary or of law enforcement.

The trouble here is, Mr Key is assuring people that no law change is necessary because he is instructing police and social workers to react a certain way when a certain subset of crime is committed. Police, if they obey Mr Key, are going to act as though the law had been changed. Now of course, these instructions are not binding. The only way they could be binding is if we didn’t have the rule of law. In effect, the law doesn’t need changing because his instructions are currently filling the role of an ammended law. And as for the separation of powers, I grant that Mr Key isn’t giving instructions to judges. That would be far too blatant, and judges would simply refuse to comply (rightly so!). But he’s uncomfortably close.

[EDIT] I’ve just checked my inbox, where I found an email sent today by Family First. It points out something fascinating about John Key’s stance on ammendments to section 59 of the Crimes Act and whether or not police should overlook minor criminal offences (the source for the John Key quote is here, in an article that (now ironically) says that Labour showed “contempt” for New Zealanders):

John Boscawen’s amendment was virtually identical to the Chester Borrows amendment – an amendment which the Prime Minister said only two years ago… “the way you send a message is to make the law clear and precise and then to police it strongly and vigilantly. My colleague, Whanganui MP Chester Borrows, has put forward an amendment to Sue Bradford’s Bill that would do this. In my view, this is the correct response, and the one Parliament should adopt.”

[bold text highlighted by me]

Glenn Peoples

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{ 4 comments… add one }
  • Andy Moore August 27, 2009, 1:54 am

    yeah spot on Glenn

  • Dan August 27, 2009, 5:00 am

    I don’t know anything about NZ constitutional law or referenda, which is contributing to my confusion. Many US states, but not the federal government, have provisions for direct democracy through ballot initiatives and referenda. My unfortunate current state of residency – Michigan – for example, passed a ballot initiative a few years ago amending the Michigan constitution to prohibit institutional racial preferences by state agencies and universities. The result was binding immediately as a change in law.

    Is the referendum process in NZ merely advisory? If so, why have the process in the first place?

    A second point on the rule of law. It is not technically correct that the rule of a king is inconsistent with the rule of law. The germanic tribes of the middle ages, as well as England, were ruled more or less by kings but were also fairly characterized as rule of law regimes. Likewise, even the Roman Empire was a rule of law regime. The most accepted definitions merely require that laws be of general application, predictable, understandable, followable, promulgated under regularized processes, available for consultation (not secret), and not changed too often (cf. Raz, Fuller, Finnis, etc.). To this “formal legality” formulation, some commentators add democratic principles and individual rights.

    But the crux of the rule of law point bears directly on what the result of the referendum really means. If rule of law has force, it’s important to determine first what the law is. If the referendum is merely an advisory opinion of the masses, then it may have some persuasive force as law, but it is not law itself.

    This (the relation beteen the referendum and the rule of law) is a really fascinating issue and is definitely worth an article or two.

  • Glenn August 27, 2009, 9:58 am

    Dan, no, our referenda are not binding at all.

    As for the rule of a king, yes it’s true that having a king is compatible with the rule of law. I tried to be more specific when I said “where a King can rule by his own will.” Situations like that are not compatible with the rule of law. Not all Kings, of course, rule that way.

  • Bart Hanson September 16, 2009, 5:33 pm

    I voted no and I would like to see referenda become binding. I am not hopeful however I believe the new move to get sufficient signatures to start a new referendum to achieve this is a good idea. However the question needs to be not just “whether the results of referenda seeking repeal or amendment of any law should be binding” but also “if a majority of 75% of referendum participants is reached”.
    Lets not have any ambiguity right? Else it will fail and be just a waste of effort.

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