Posts by Graeme Edgeler
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we never want to use criminal sanction in respect of acts that occur in the run of a rugby game, even when they would certainly count as assault off the field
Quite right. Hence the law recognises defences of express and implied consent. All I'm arguing for is that the law should recognise a defence in another situation where we never want criminal sanction invoked.
Ideally, the scope for police discretion would be minimised. It is difficult/impossible to lay down in advance all the situations where we would not want criminal sanction for something that may constitute a criminal assault - the other defences - the power of a ship's captain or pilot to use reasonable force to discipline, or the use of reasonable force in self-defence or defence or another, etc - are among some of the others.
We don't want to charge Pete Hodgson, but we may want to charge someone who does something similar to what he did. Had the arm grabbing been slightly different, and instead it had been someone who ran up to the PM on a uni campus and grabbed her arm before running off then perhaps the police would have charged. The 'assault' itself is similar, but a slightly different context means a charge might be appropriate (or at least more appropriate). It is difficult to imagine how one would draft a general provision which caught the one and not the other, so use of discretion is appropriate.
It is not difficult to imagine how to draft an appropriate exception to the law in the present case - Chester Borrows, and apparently Geoffrey Palmer, have done it for us.
I'll think about Bradford's moral argument (I'll have to reaquaint myself with it for starters) and get back to you.
The public law argument is naturally much easier for someone like me, although I'll start by noting (in a legal context) that (and religion won't pay much of a part at all in my answer) the right to raise your children according to one's religion is specifically guaranteed in the International Covenant on Civil and Political Rights - the forerunner to the NZ Bill of Rights Act. The question may not be "what right do we have to do this to our children?" but what right has the government to stop us if we don't step over the line to:
"physical or mental violence, injury or abuse"
(the protection contained in the Convention on the Rights of the Child)
but I'll go back and see what the argument actually is, now.
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The police exercise prosecutorial discretion all the time in potential assault cases.
Of course they do, and I've little doubt that this will continue. There aren't suddenly going to be dozens of prosecutions of parents who lightly smack their children if s 59 is amended as Bradford now proposes (or even if it is fully repealed). Anyone saying it will is lying.
Prosecutorial discretion is important in avoiding absurd results, but passing a law knowing it would have thousands of absurdities if enforced and relying on prosecutorial discretion to avoid those is a step further.
It is not twisting words to claim the bill "criminalises light smacking", just as it is not twisting words to claim the Misuse of Drugs Act criminalises possession of a single joint of marijuana.
Just because you, maybe, once or twice, in your youth, possessed a joint, and you weren't caught, or were caught and were neither arrested nor charged, does not mean what your possession was lawful. And it does not vitiate any need for reform of marijuana legislation.
Prosecutorial discretion is not the answer to enforcement of laws prohibiting marijuana possession, and is not the answer to laws prohibiting light smacking.
We need prosecutorial discretion to deal with fights on the rugby field because sometimes we want to use criminal law to sanction fighting on the rugby field. We never want to use criminal law to sanction a light smack.
This is why the Borrows' amendment is sensible. If, as I assert, we collectively never want criminal sanction for a light smack then the law should say so in the narrow terms Borrows proposes.
Prosecutorial discretion will remain useful in avoiding over-the-top prosecutions for the parent who disciplines he child with a single light smack with a wooden spoon (for example) - which would fall outside the incredibly narrow circumstances Borrows' amendment accepts are okay.
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I find the dichotomy between this debate and the drinking age debate interesting.
I was never a fan of the we must do something (and what else can Parliament do?) to attack underage drinking argument, and I'm not a fan of the analagous we must do something (and what else can Parliament do?) to attack child abuse argument.
However, I find it interesting that many of those who attacked the proposal to raise the drinking age don't like the similarly-themed response this time 'round, and many who thought it a goodargument for raising the drinking age are finding logical flaws this time.
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I'm not sure what your/their point is. The bill seeks to address problem X. How is pointing out that it doesn't address problem Y addressing the bill at all?
The point is that many *supporters* of the bill assert that there is no problem X.
The bill, unamended by the Borrows' amendment, seeks to address the problem of light smacking. If this isn't viewed as a problem, then the major rationale remaing for the bill is that it addresses problem Y - actual abuse. If this too falls away, then the rationale for the bill fails.
There are good arguments for light smacking to be criminal - those who support the passage of this bill unamended should be making them.
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I'm more used to railing against the idea that the law should be a "signal" rather than an enforced offence.
Yeah, remember the time when the Green Party used to stand up for the rule of law?
I respect them a lot for taking some of the (frequently ridiculed) principled positions on various matters, supporting the rule of law when basicially everyone else opposed it.
Passing laws you don't want enforced is antithetical to so much of the Greens' views on other justice issues. The Green Party would have been justifiably outraged if the Homosexual Law Reform Bill had failed on the basis that the offences it removed just wouldn't be actively enforced by the police.
Legislation should make law, not "send messages".
I generally try to avoid cliches, but if a law is too stupid to be enforced it is too stupid to be a law. And passing a law on the understanding that it is too stupid to be enforced can only drastically reduce respect for the rule of law - if loving parents can ignore this legislative change without fear (as proponents suggest) - then what other laws just aren't worth following?
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My point is that if a judge can currently rule in a case that force used was not reasonable, then why the need for new legislation?
The point of such a law is not to prohibit unreasonable force (already prohibited), but to prohibit reasonable force (presently allowed).
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Juha - I agree that the First Amendment doesn't - on its own terms - protect atheism, but that is how it has been intepretted, particularly in light of the 14th amendment (on it's own terms it doesn't apply to State Governments).
I was think more along the lines of:
"government should not prefer one religion to another, or religion to irreligion."
from the decision of Justice Souter (writing for the majority) in the Grumet Supreme Court decision.
Or similar decisions holding that atheism qualified as a religion for various tax purposes etc.
That high schools are not even permitted to have moments of silence before football games (however sensible this proscription might be) should tell you that there is at least some freedom from religion enshrined in US law.
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Juha - is there any basis for the assertion that only religionists are entitled to protection in the US?
Surely the letter to which you link, which is complaining about the protections atheists have (absence of religion in schools, absence of deportations of atheists, etc.) is pretty good evidence that there are protections, lest there be nothing for crazy people to complain about.
Now I'm not saying that atheists have an easy time of it in the US, but there are lots of protections for them in the US that aren't enjoyed elsewhere.
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And the way I read it, Tamaki's expressed desire is democratic. However fanciful, there's no way his statements are seditious.
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Thanks Russell - worth a go, but it didn't seem to work any better the second time. Delete at your leisure...