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Thursday, 6 August 2009

Jim Evans Decisively Smacks John Roughan

On Saturday the NZ Herald's John Roughan demonstrated why journalists should not engage in legal interpretation in his widely criticised piece on the smacking referendum, "Sinister undertones to referendum instigator."

At the time I struggled to ascertain whether Roughan was being deliberately deceptive or he just didn't get it. He essentially quoted the non-controversial, much more straight-forward, parts of the anti-smacking law, the new s59 (1),(2) and (3) of the Crimes Act, to attempt to prove that the law was not confusing and claims to the contrary were a smoke screen put up by those who desire "the right to flog children." Aside from his slander, his article was widely criticised because he omitted to mention the most controversial and confusing clause in the new section: s59 (4).

More than one person asked me to write a critique of this piece but was unable to due to my injuries flaring up badly this week and massive transport headaches. I also worried that my status as a law student meant anything I wrote would not carry the necessary weight (funny how that does not apply to journalists with significantly less law papers to their name than I). Not to worry, because today the Herald features a most excellent response by Jim Evans, Emeritus Professor of Law at the University of Auckland no less; see "Jim Evans: New section 59 is clearly a mess."

Professor Evans clearly and simply explains not only the confusion caused by the controversial sub-section (4) but also the less widely noted but equally concerning problems that sub-section (2) creates. He concludes with what we have consistently maintained,
"This is not clear legislation. In creating this law, Parliament abandoned its constitutional responsibility to say with clarity just which conduct is criminal.

The section results from a political fudge. Whatever other views one takes about the topic of smacking, that much at least ought to be kept clear."
I encourage you to read both articles, especially if you have not voted yet and you are confused by all the contradictory claims being made by both sides. I have included the piece of legislation under scrutiny as a term of reference below.

Crimes (Substituted Section 59) Amendment Act 2007 No 18, Public Act

New section 59 substituted
Section 59 is repealed and the following section substituted:

“59 Parental control
“(1) Every parent of a child and every person in the place of a parent of the 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).
“(4) To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.”


  1. Madeleine, I was far more concerned with John Roughan’s vicious attack on Bob McCoskrie than his ignorance about the law.  I think we have to accept that bloggers often will get things wrong.  I did the other day much to the upset of an anonymous blogger on Kiwiblog. 

    However, I think we should expect someone in a position of John Roughan to make an effort to get the facts right. 

    In a private email to me he acknowledged he did not know what Bob was lobbying for.  He should have had the integrity to have publicly acknowledged that he got it wrong and that Bob and Family First were not lobbying for a law change that would allow parents the use of any implement such as a strap.

    When the bill was being debated National tried to get a smack defined by the Chester Borrow’s amendment. This would have precluded the use of a strap.  This was unsuccessful. 

    ACT’s, John Boscawen has a private member’s bill in the ballot that is very similar.  Bob McCoskrie has stated on TV and radio debates that he is happy for implements to be banned.  He supported the Chester Borrow’s amendment and he supports Boscawen’s bill.

    John Roughan has grossly misrepresented Bob’s position and that of the majority of the NO lobby.  He is trying to tell voters that a NO vote could possibly allow a parent to use a strap within the law.  He knows he has a lot of power in his position.  His timing is deplorable – just after the ballot papers were sent.  He has claimed he did so out of ignorance.  That is a shocking admission for someone in his position.  He should have a minimal knowledge of what he is writing about.

    He like many in the YES lobby are trying to make out that those who support the right of parents to smack with an open hand are bullies because of the difference of power.

    I say Roughan is a bully and a coward because he will not defend his misrepresentation of the facts on an even playing field like this blog.

  2. I agree that Roughan's slander was particularly revolting in that piece. Sadly its nothing we have not seen. In No Defences Permitted for the Accused, linked to above under Related Posts, I cite Idiot/Savant doing a similar thing and the Vote Yes site is equally full of it.

    Reasonable force never meant child abuse was permitted. Anyone who has bothered to read the reported cases where the old s59 was raised as a defence can tell you that.

    Of course it is far easier to not actually read the cases and to just jump on the bandwagon and agree with the lies being told about them a la Roughan.

    Jim Evans showed Roughan up. Even though he did not hit Roughan's slander he did hit him hard and I doubt many who've read both will come away buying anything Roughan has to say on much to do with this debate.

    Sometimes it is not necessary to take out every error an opponent makes to take them out completely. I think this is the case in this instance.

  3. I love the fact that Roughhan tries to reassure people that he is sure that judges will make the right decision when trying to interpret what on earth the policy writers meant.  Isn't this an admission that it is basly written and confusing?

  4. He is right to have confidence in Judges, they deal with ambiguous, conflicting and poorly drafted laws and rules of precedent all the time - it is their job - but it certainly is not a justification for the existence of such law. But yes, I think as hard as he tries he is not that convincing when he tries to sell us on the anti-smacking law not being confusing.

  5. Does it worry you at all that some parents may take a NO vote to be justification to give a "good hiding" to their children?

  6. Max, please explain.  Do you mean a lot of NO votes or Key finally taking notice of the vast majority of parnets?

  7. How on earth did you interpret that to mean "Key finally taking notice of the vast majority of parents"?

    I meant what I said.  If the referendum is "won" by the NO votes - does it worry anyone that some (misguided) parents may interpret this as justification for giving the kids a hiding?  Is this not a clear queation? 

  8. hmm.. comments not appearing again....

  9. Max, I think you have a very vivid imagination.  I fail to see your rationale.  Do you base it on experience?  How many children have you raised? 

  10. "Does it worry you at all that some parents may take a NO vote to be justification to give a "good hiding" to their children?"

    Of course it worries me. It worries me that people think they can use any justification to give a "good hiding" to their kids.

    Abuse is not acceptable. It is not acceptable under the current law. It was not acceptable under the previous law. It must be clamped down on.

    People delude themselves and go to all manner of lenghts to self-rationalise and justify their wrong behaviour but it does not follow that we must take everything they put up in such attempts and remove it or ban it from society. We would not ban driving cars because some people use some bogus justification to drive drunk or speed.

  11. Madeleine.  Thank you for your honest repsonse.  This is a worry of a lot of people (not just me Chuck) and to ignore this valid concern is not useful.

    Chuck - I have read two articles - both of which were criticized on this website that make the link between abuse and a no vote on this referendum.  The evidence is therefore right before your eyes that many people have made this link.  Why pretend that this is not the case.  If journalists are writing articles making this link - why is it so whacky and requiring of such a "vivid imagination" to think that some parents will not fall for the same faulty reasoning and feel justified in abuse for the same logic WHICH IS ATTACKED ON THIS VERY PAGE!  Again.  You are side-stepping and ignoring a very real and reasonable question.  So if you "fail to see my rationale" perhaps you should just re-read a few of the articles on this website.


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