S59 allowed a defence of reasonable force against prosecution. That is not the same as a right to smack.

I believe the intent of the lawmakers was to allow a ‘reasonable’ smack.

Well, you are the only person I’ve ever heard argue this point. It is widely accepted in all the commentary I’ve read that s59 was “intended to be used as a defence against a charge of assault”, just to quote one source. So you’ll have to tell us more than just what you believe if you want serious consideration.

The police always had this right. Indeed the Police must be able to use their judgement in this area no matter what the law says.

I see this as utter cr@p I’m afraid. I don’t want the police interpreting the law, that is the role of the courts. The police should have a ‘zero tolerance’ policy and leave the courts to determine guilt and sentence.

It may be what you want, but it ain’t what we got. The relevant amendment was:

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.

“To avoid doubt, it is affirmed” – why would they use such wording if they weren’t talking about a power that already existed? Of course, they were, as the explanatory note shows:

The Police have a long-established discretion as to the action they take in regard to complaints about minor breaches of the law reported to them. That discretion is essential to daily policing.

If the Police were obliged to take extensive action about every minor complaint, they would have little time for investigating serious crime. So long as each case is assessed on its merits and the Police are not simply refusing to enforce a law that has been passed by Parliament, the courts have acknowledged the existence of the Police’s discretion in individual cases.

If the Police were required to prosecute every breach of the law that came to their notice, the courts would quickly become clogged with trivial cases and the law would be brought into disrepute. For that reason they exercise their discretion to warn, or take action other than prosecution, in thousands of cases each year. The existence of guidelines issued by the Solicitor-General as to the public interest factors that should be considered in making a decision whether or not to prosecute emphasises the importance of this discretion.

While under the common law there is no doubt that this discretion applies to minor complaints of assault, it is desirable that Parliament expressly affirms it in cases to which this section applies.

And thank goodness too, as a situation where the Police had to apply with zero tolerance a law defining when to intervene between a parent and a child would lead to disasters no matter how the law was written.

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Valis Said: April 23rd, 2009 at 5:42 pm

S59 allowed a defence of reasonable force against prosecution. That is not the same as a right to smack.

I believe the intent of the lawmakers was to allow a ‘reasonable’ smack. As to “rights”, well that’s a discussion for another day. Let’s stick to legal and illegal.

The police always had this right. Indeed the Police must be able to use their judgement in this area no matter what the law says.

I see this as utter cr@p I’m afraid. I don’t want the police interpreting the law, that is the role of the courts. The police should have a ‘zero tolerance’ policy and leave the courts to determine guilt and sentence.

re: you don’t have to be convicted to be a criminal,

If I do 105k on the highway, the Police will neither arrest me, nor do I believe I am a criminal. If I do 130, they will and I am.

Again, this shows a lack of understanding of the law, which provides for an error of calibration in a speedometer of 10 kph. If you purposely drive with 105kph as the reading on your speedometer you are committing a crime, if the reading is 100 but the actual speed is 105 you are not a criminal by definition.

RE: Secondly, it took the judgement away from the courts and put it in the hands of the Police…

As I’ve explained, it left this situation unchanged, as the Police always had such discretion. Secondly, to think you can write a law regarding when to interfere between a parent and child and escape the use of Police judgement is optimistic indeed.

See my comment above. Zero tolerance by the police, interpretation, determination and sentencing by the courts – THAT is the rule of law.

I have read where people have got off after using pieces of wood and hose. Is there a difference?

To be honest, I doubt it, but don’t know as I have not read the transcript, and neither, I think, have you. What is true is that newspapers will dramatise reports to grab attention – that’s what they do for a living. If I have to chose between a jury decision and one by the police as to guilt or innocence, I’ll take the jury, otherwise why bother with them? A police state, or the rule of law, take your pick!

Corporal punishment has been banned in schools for some time, so a teacher could not do what you suggest they should even before s59 was repealed. They have found ways to manage and certainly don’t need a right to smack.

I wonder at your logic at times. The number of teachers who have walked away from the profession because they can’t manage is legion, and these are usually the dedicated teachers, who find joy and fulfillment in the subjects they taught. We have a generation that has a significant component who do not understand discipline, who are terrorising weaker members of society – young and old -, who are flaunting the law and not expecting any response. This does not bode well for the future, believe me!

But you go your way and I’ll go mine. My children were punished at school when needed, I paid directly for their education and signed papers giving the school that authority. I have a great relationship with all my kids, we hug and kiss when we meet, they respect others property and their own, they too believe in the rule of law and I am proud of them. My belief in what is right and wrong in relation to raising children comes from the experience of raising seven, and I will rest on that experience.

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Shunda said: The difference between “care” and “control” can be a pretty fine line at times, and this referendum is about that line being crossed.
Yes Shunda, that’s very true. Remember to vote ‘YES’.

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The law pre S59 allowed ‘reasonable’ discipline of a child, and left it, quite rightly, to the courts to decide what “reasonable” would be in the circumstances that pertained.

S59 allowed a defence of reasonable force against prosecution. That is not the same as a right to smack.

S59, however, took away reasonability, and made it illegal to tap a child on the elbow with your little finger. The police were then told to use their judgement about prosecuting.

The police always had this right. Indeed the Police must be able to use their judgement in this area no matter what the law says.

you don’t have to be convicted to be a criminal,

I would call that pedantic. If I do 105k on the highway, the Police will neither arrest me, nor do I believe I am a criminal. If I do 130, they will and I am. Somewhere between is a judgement call that makes all the difference.

Secondly, it took the judgement away from the courts and put it in the hands of the Police…

As I’ve explained, it left this situation unchanged, as the Police always had such discretion. Secondly, to think you can write a law regarding when to interfere between a parent and child and escape the use of Police judgement is optimistic indeed.

The proponents of S59 argue that ‘offenders’ would use the excuse that hitting a five year old with a steel belt buckle as ‘reasonable force’; they were right! However, that doesn’t mean that a jury would accept that argument, and I have yet to read a decision that said they did!

Neither have I, but I have read where people have got off after using pieces of wood and hose. Is there a difference?

Corporal punishment has been banned in schools for some time, so a teacher could not do what you suggest they should even before s59 was repealed. They have found ways to manage and certainly don’t need a right to smack.

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Valis

Some think that its all due to the s59 repeal, forgetting that smacking was never legal

Don’t let facts get in your way will you!

The law pre S59 allowed ‘reasonable’ discipline of a child, and left it, quite rightly, to the courts to decide what “reasonable” would be in the circumstances that pertained.

S59, however, took away reasonability, and made it illegal to tap a child on the elbow with your little finger. The police were then told to use their judgement about prosecuting. This, to me, raised two things I do not believe are appropriate. Firstly, the elbow tap became a criminal offense; you don’t have to be convicted to be a criminal, if you break the law you are one. Secondly, it took the judgement away from the courts and put it in the hands of the Police; taking away the centuries old right to be judged by a jury of peers (plural being the key) and making the police investigators and judges – a combination specifically avoided by our traditional judicial system.

The proponents of S59 argue that ‘offenders’ would use the excuse that hitting a five year old with a steel belt buckle as ‘reasonable force’; they were right! However, that doesn’t mean that a jury would accept that argument, and I have yet to read a decision that said they did!

What we have here is an approach to control of the population that is not needed in a civil society. Juries don’t accept incredible ‘excuses’ for irrational and illegal actions in a society that has values and maintains them, and therein lies our problem.

Scenario 1959, a child misbehaves in a classroom and goes so far as to swear at the teacher and throw an inkwell at them, that causes bleeding. The teacher takes the boy by the ear, marches him down to the Head Master’s office, explains what has happened, leaves the boy with the Head Master and goes to the staff-room for a band-aid. The boy is given six strokes of the cane on each hand and returns to the classroom, he never loses his temper in class again as the pain of punishment stays with him as a deterrent,

Scenario 2009, a child misbehaves in a classroom and goes so far as to swear at the teacher and throw an inkwell at them, that causes bleeding. The teacher takes the boy by the ear, marches him down to the Head Master’s office, explains what has happened, leaves the boy with the Head Master and goes to the staff-room for a band-aid. . The boy is taken to hospital for treatment to his ‘assaulted’ ear and to register an ACC claim; a counselor is brought to the boy to help him deal with his anger problems and resentment at being hurt by a teacher, the police are called and the teacher is charged the next day with assault on a child, is fined $1,000 and loses their job. Next time a teacher tries to establish order in a class with that bot in it they are threatened with loss of their job if they so much as look at the boy with malice in mind!

Why has the second scenario come about? Because we have ‘banned’ discipline of children by appropriate adults using reasonable action, and not replaced it with anything else. WE can’t ‘ban’ the child from misbehaving without having some form of punishment if they break the ban; counselling the child and sacking the adult are NOT appropriate punishment, that is clear, but what is? Over to you!

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Valis that is not an answer to a question I asked. If you are going to state you are answering one of my questions, you really need to answer a question that I asked. Utilising logic would also help.

Well davec, I’m the only one who even tried to answer your question, so if that’s your attitude, particularly when I’ve done nothing to offend, then I see no reason to try again.

This is about a shift in ideology throughout our state system that is not supported by any logical evidence, it has nothing to do with parents using S59 to get away with abuse.

You are right that it has nothing to do with s59, nor with the repeal. Good or bad, the current system has been developing as it has over years independently of the s59 debate. Some think that its all due to the s59 repeal, forgetting that smacking was never legal and Sue’s bill only coincedentally was pulled from the ballot when it was.

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” Should each parent, for example, decide whether their neighbours pool should be fenced or not? What about the family on the other side?”

Of course the state has to pass laws for the common good of all, but protecting kids from drowning is a little bit different to banning a long held method of discipline. The question in all this is how much “care” the state is required to give its citizens. The difference between “care” and “control” can be a pretty fine line at times, and this referendum is about that line being crossed.

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shunda – “No, control freaks!”
There. Are you satisfied now?
I sympathise with your situation, but it still remains true, doesn’t it, that there are many people, aside from the child’s parents, who have responsibility for a child’s welbeing. Should they be overlooked when it comes to decisions about what to do and where? Should each parent, for example, decide whether their neighbours pool should be fenced or not? What about the family on the other side?
Be positive Shunda, don’t be a ‘no’ man. Vote ‘yes’.

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Greenfly said:
“Are parents the only ones obligated etc…? How about teachers and administraters at schools and child care personel for examples of others charged with the same responsibility.:

If you read my earlier posts you will see that I had a serious issue with the way these state employee’s were “caring” for my child.
Then instead of dealing with the issue at hand (bullying) they started asking whether he was smacked at home!
This is evidence of indoctrination and subtle guilting, that any legalistic evangelical preacher would be proud of!
This is about a shift in ideology throughout our state system that is not supported by any logical evidence, it has nothing to do with parents using S59 to get away with abuse.
I have since been told that school social workers have to ask children they have contact with, whether they get smacked at home. It is done in the same way as women being asked about domestic violence as a matter of policy.
A no vote is the only common sense thing any of us can do to avoid this blatant violation of our rights as parents, this whole anti smacking crowd reek of a dogmatic religious fervor.
Say no to the control freaks!!

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Valis that is not an answer to a question I asked. If you are going to state you are answering one of my questions, you really need to answer a question that I asked. Utilising logic would also help.

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Strings said: I’m only a man so what do I know?!

Same!

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Mark

stringS. As is 6 in this case, a nickname bestowed in my early 20s (Nick was alreeady taken it would seem) when I played folk-blues guitar for a ‘living’ to work my way through uni & b-school.

(-_-)

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Valis

Not sure I read it that way, but if you say so, I will believe you.

Gud on yer

Greenfly
There definitely seemed something feminine at times to your thinking. But WTH, I’m only a man so what do I know?!

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So you are arguing that because YOU have no self control, my children should become criminals by definition?

Strings, please also put your glasses on. I said nothing of the sort. The very next line following what you quote says the opposite of what you claim. And the following paragraph says exactly why I support the current law. Not sure how you missed it.

davec, the above is also my answer to your question.

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Indeed, lets.
One footnote from me. Girl? With three grown children to my delightful wife and the prospect of grandchildren of my own sometime in the near future, the title ‘gurl’ seems a little quaint!

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String (how long); Yep Right. Dangerous Words, and quite wrong too – these people actually belong in a Hospital (I believe in a constant reconstruction of our thinking).

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Let’s leave the matter where it is eh?

Just one footnote. Spinster? With Seven Children and four grandchildren! When I was yuoung you didn’t leave a lady with a baby and move on to the next sh@g like they do tody, you stuck around and had more babies

But thanks for the thought. My pen1s appreciates it (-_-)

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strings, you saucy ol’ spinster you, I’ve mired us in the Frightful Bog of Cross-Purpose and Incomplete Understanding, I’m afraid.
I took these: So you are arguing that because YOU have no self control, my children should become criminals by definition? Shame on you!
to be your words. I read ‘YOU have no self control’ to be a sweeping overstatement and felt that ‘YOU had insufficient self control at the time’ was the more fair statement.
I don’t know if this helps clarify. If not and I am deepening the hole, then I apologise and will retire from the chase.

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Finally Greenfly, may I suugest that you

Try taking the sensible approach and seek to understand what was meant by the person making the original statement. Then discuss the ramifications.

?

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Greenfly

To the first – gud on ya gurl
to the second – erm? How can it be and mischievous when HE said it; and, erm, the final ‘cluster’ of claims, would that be, erm

So you are arguing that because YOU have no self control, my children should become criminals by definition? Shame on you!

Given that Valis supports the law as it stands

Valis Says: April 19th, 2009 at 10:53 pm
My reasons for supporting the current law are what I’ve said above

and that law makes my children criminals (irrespective of whether they are prosecuted or not) if the smack one of their (or anyone else’s for that matter) children for gross misbehaviour (a point I made earlier), I don’t believe my comment is disjointed or nonsensicle.

However, I am always ready to admit a mistake, so if you can show me where and how I have erred I WILL apologise.

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