Hard News: The Arguments
251 Responses
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Ian wrote:
The Bill at present before Parliament is not Sue Bradford's but the Select Committee's modification.
Just to clarify...
When I say that it's Sue Bradford's bill I'm referring to the fact that it was originally her private member's bill -- and that she is now the official "Member in Charge" of the amended bill. This gives her the right to withdraw the bill if she so wishes.
By the way, Ian, thanks for all your comments -- they've made an interesting contribution to the debate.
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A really interesting observation. I've heard similar statements maybe a dozen times over the last week -- people who initially favoured the status quo, but then changed their minds when they saw the arguments presented by their own side.
And to tidy up my rather blunt statement before - seeing the sort of disciplinary approach these folk seem to want to use the status quo to justify (you know, spare the rod and spoil the child) is what convinces me that the status quo and probably the Burrows amendment are not what is required.
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I believe clever lawyers would soon have juries interpreting Chester Borrows proposed amendments in much the same way as the present law is interpreted.
There's undoubtedly some scope, but not much. The explicit prohibition on implements gets rid of every case Sue Bradford and others have pointed to as evidence of the failings of the current law.
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I'm written a lot in this thread so... thanks to everyone for putting up with me!
I hope it's OK if I contribute one more time to state where I think the first half of David's Southerly piece goes wrong.
David thinks that all physical punishment is "cruel, inhuman or degrading" and that some non-physical punishment is too. The people he's supposed to be fairly engaging with, however, think, at least to a first approximation, that some physical punishment isn't "cruel, inhuman or degrading". My sense is, for example, that Burrows's amendment about "transitory and trifling discomfort" etc could pretty easily have tacked onto it (or maybe even be replaced by) the provision "[hence] that isn't either cruel, inhuman, or degrading". (And sometimes courts have taken resonableness alone to imply non-"cruel, inhuman, or degrading")
In this way, David virtually ignores his opponents views - begging the question against them [on which more later] - preferring instead to shoot fish in a barrel several times over, having helped himself right at the beginning to the most favorable possible terms of trade for his own position. [sorry about the mixed metaphors!]
For example, he is able to have great fun at the expense of people who say that they wouldn't feel comfortable smacking but who want to preserve the choice for others to do so. How can, he rightly asks, someone be in favor of other people choosing to dish out the "cruel, inhuman or degrading"? [Bumper stickers that fall afoul of this sort of point are, of course, commonplace: "Opposed to x? Then don't have an x!" But if you are deeply opposed to x, you think x shouldn't happen, not just that you don't like x and wouldn't do x yourself.] There are, of course, perfectly good pro-choice positions to hold in this case as in many others, and it's a symptom - alarm bells should have ringing for people – of how unfairly David has set things up, that only conceptually confused pro-choice-about-smacking positions are left on the table.
Consider also David's concession that if no non-physical forms of punishment are effective in disciplining children then they must be physically punished after all- i.e., endure at least some "cruel, inhuman or degrading" punishment as the lesser of the available evils. That's a kind of tragic vision/predicament. People sometimes preemptively stiffen their backbones like this for, say, what they'd allow theselves to do to terrorists with ticking atom-bombs... Again, it's an alarm-bell-inducing symptom of the unfairness of David's basic way of setting things up that it comes to this about jolly smacking.
Let's now go back to that first fateful step - in a way it's the whole ball-game: How does David know (by what right does he assert) that all physical punishment is "cruel, inhuman or degrading" (CIoD)? Here's all that he says:Proponents of this argument would point out that we don't permit physical punishment of criminals. Our society has decided that it would be "cruel, inhuman or degrading" to beat or hit them. So why do we allow physical punishment of children? Sue Bradford obviously falls into this school of thought. She thinks that what is "cruel, inhuman or degrading" for an adult is also "cruel, inhuman or degrading" for a child.
In earlier notes (esp. here) I drew attention to 2 especially salient differences between the cases: in the child case it's personal and it's system-installing, and in the prisoner case it's neither of those. I won't repeat those points here but it's important to note that David doesn't even attempt to address them (or anything like them). David also leaves himself no room to consider the deeper challenge such considerations pose: what I call their "anti-reductiveness". These are the crucial points. Everything else is just shadow-boxing and misdirection to the extent they're not dealt with. So much more to say, but will stop! [Note though the comedy that results from insisting contrary-to-my-own-view that prisoners and kids must get the same under-authority treatment. No smacking then but it's leg-irons and cuffs every time we're at the mall, and everyone gets locked in their rooms at night! Kerazy.]
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Tapu Misa has a column about this issue in today's NZ Herald.
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What I was trying to say is that (in a democratic situation) you sometimes can't get the outcome you want. But isn't the second-best result still better than the third-best result?
I suspect Sue's argument would be (and I haven't seen or heard her give an in-depth explanation of her reasoning for threatening to withdraw it):
1. If it goes through with his amendment, then it would be much harder in the future to get Sue's vision of it passed. I think sometimes it's easier in politics to make one large step, than make one small step, and then try to get parliament to make the second small step. No future government would make this a focus, no mainstream groups would pick it up because 'well the new law isn't perfect, but it's not too bad', or 'we just did that law' etc.
2. Tactically, no doubt she's working hard on lobbying people to get them to vote down the amendment. One of her methods is no doubt to say 'if you vote for his amendment, then things won't change at all'. It's a threat, and might be seen as non-constructive, but this is parliamentary politics. Threats and non-constructive behaviour are one of the ways you get the job done.
Who knows whether she'll actually withdraw it if the amendment passes. Given that she's a very principled person and generally does things that she says she's going to do, I'd put my bets on 'yes, she will'.
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Stephen Glaister wrote:
David thinks that all physical punishment is "cruel, inhuman or degrading"...
I really wish you wouldn't tell me what I think, Stephen -- I never said any such thing!
I was attempting to explain Sue Bradford's (and many others') viewpoint. The phrase "cruel, inhuman or degrading" is from Article 5 of the UN convention on human rights (which I cited).
Stephen Glaister wrote:
[The] salient differences between the cases: in the child case it's personal and it's system-installing, and in the prisoner case it's neither of those.
Yes, of course there are differences between the way we treat adults and children -- that's blindingly obvious. I never said there weren't and neither did Bradford. In fact, her bill explicitly provides for force to be used on children in a way that it couldn't legally be used on adults.
The question is whether we should treat children and adults differently in the specific case of physical punishment.
One of the key points I was trying to convey in my article (perhaps the key point) is that much of this is a matter of opinion.
It is clearly your opinion that there is a difference between children and adults rights when it comes to the specific case of physical punishment. It is clearly other people's opinion that children and adults should have the same human rights when it comes to physical punishment (see Ian Hassall's comments).
And those people who are of the latter opinion obviously can't be 'pro-choice' about physical punishment -- because it would be nonsensical to say: "People should be allowed to choose whether or not they abuse someone else's human rights"
I've lived in countries where they don't think the death penalty is "cruel, inhuman or degrading". But in New Zealand it is prohibited on these grounds (and others). It's all a matter of opinion. You've just got to decide what sort of a society you want for your country.
Stephen Glaister wrote:
I'm written a lot in this thread so... thanks to everyone for putting up with me!
I'll say the same to you as I said to Ian Hassall: thanks for all your comments, Stephen -- they've made an interesting contribution to the debate.
But it might be nice if you'd refrain from putting words into my mouth, and accusing me of things like conduct "unbecoming to any scientist". That probably isn't such a useful contribution.
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Kyle Matthews wrote:
If it goes through with his amendment, then it would be much harder in the future to get Sue's vision of it passed
A fair point -- I've wondered a lot about whether this might be the case.
One of her methods is no doubt to say 'if you vote for his amendment, then things won't change at all'.
And fair enough, again. You're probably right...
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Stephen, you make some good points, and as one who's immersed in the daily battle of turning wild beasts into civilised adults, I have some sympathy for what you're saying.
But: you don't give David credit for realising that adults and children ARE different and that we're only talking here about one particular issue; nor do you seem to give credit to the bill itself (as modified) for realising that force is sometimes quite appropriate. And while it's easy (and we're all probably a bit guilty) to paint the opposition as "just not getting it" it rather demeans this debate.
Further: the "system installation" metaphor is grating. It implies a "blank slate" theory of mind/knowledge, and it also implies a reasonably sharp division of learning into (in your software terms!) installation and modification/upgrades. In fact learning is life-long; and there are times when we all have to- or should- go back and re-learn some of the basics (a partial re-format?!) about how to treat each other.
To some degree, questions about the relevance of corporal punishment to education have been answered in schools. (I have an atavistic streak and sometimes think misbehaving children and adults would benefit from a 'good' beating. But by whom? And who and what process would I trust to make that decision? None, as it happens- I have seen parents do things- and have smacked myself- that make me wary of believing in)
As you say, the agency does matter. For some parents, I'm prepared to believe "This is going to hurt me more than it hurts you" is actually true. But the intimacy of the violence (or "corrective smack"- it sounds so much better!) makes it, to me, more rather than less disturbing, and certainly no less able to be challenged.
Deborah point is good: shouldn't we presume all human rights extend to children, and roll them back one-by-one in a considered manner? There's a lot of agreement that the arguments are strong for most age-related laws (not that they don't need debating). Putting this issue under the spotlight is timely and instructive.
You claim that by conflating the human rights of adults and children we're missing the point. Most people get that, but disagree. To move on to your own point (which is simply to take Russell's original- "why should children not have the same rights as adults to freedom from assault?" as a genuine question and not a rhetorical flourish) then: is parental smacking the only- or the best- or one of many acceptable- or a poor and discredited way to "install the system" or civilise our little lovelies? -
Ooops- ... of believing in)... should have been "of believing that parents have not just a special role in children's lives, but a special insight into what is and isn't approriate punishment.)
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merc,
The old Tabula Rasa chestnut modified as the System Install metaphor (placing the Ghost in the machine). It always comes back to nature vs nurture for materialists (Locke, Newton).
Indeed the most important thing I've read here is this,(I have an atavistic streak and sometimes think misbehaving children and adults would benefit from a 'good' beating. But by whom? And who and what process would I trust to make that decision?
I agree, by whom indeed.
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Deborah point is good: shouldn't we presume all human rights extend to children, and roll them back one-by-one in a considered manner?
We shouldn't roll them back at all.
The question to ask is whether light smacking (as would be allowed under the Borrows' amendment) would breach any human rights.
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Well, that would be article 5:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
and article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
of the Universal Declaration of Human Rights.
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Those are the right articles if one is using the UDHR.
Article 5 (which has no lawful force) is very similar to s 9 of the New Zealand Bill of Rights Act (which does), which reads:
Everyone has the right not to be subjected to torture or to cruel, degrading or disproportionately severe punishment or treatment
What this actually means was the subject of much discussion in the Taunoa litigation (that's the one where the prisoners got lots of money). The courts have found that (among other things) requiring inmates to share underwear, restricting access to toilet paper, locking prisoners in solitary for 23 hours a day, requiring prisoners to clean their own cells (incl the toilet) with rags that had already been used by other prisoners, and routine unnecessary strip searches (often in public view) was not even disproportionately severe, let alone the higher standards of degrading, cruel, or torture.
The standard of ill-treatment in section 9 is very very high. Only once in New Zealand history has a court found a breach of that right (in relation to one of the Taunoa plaintiffs, a mentally ill inmate whose illness was exacerbated by the treatment).
You may find that a lesser right in the Convention on the Rights of the Child is involved here, but there is absolutely no way your Article 5 has application.
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Graeme Edgeler wrote:
there is absolutely no way... Article 5 has application.
Just to clarify: the reason I didn't cite NZBORA in my description of Bradford's (and others) human rights argument is because, of course, NZBORA only restricts what government can do -- not private individuals. See:
I drew attention to the UDHR because it's a general statement of human rights. It's not a piece of NZ legislation, as you point out -- but NZ is a signatory which suggests that our government agrees with it. I would have thought that Article 5 of the UDHR is relevant in this context -- at any rate to some of the things (such as caning and strapping of children) that have previously been allowed under Section 59 of the Crimes Act.
I fully take your point about whether 'mild' smacking comes under the category "cruel... punishment". It's an important question.
The Taunoa litigation is an interesting case. Do you think the courts would have found that the prisoners' Section 9 rights were violated if they'd been physically beaten as a punishment?
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Beaten as punishment? Possibly, but as I noted, this case was the first to find a breach of s 9.
So numerous cases for misuse of pepper spray, illegal strip searches, and violent assaults by police or prison guards, have all fallen short.
New Zealand is not a signatory to the UDHR. No country is a signatory to the UDHR - it's a declaration agreed to by the UN to which no country has (or can) sign up to. Are you sure you're not getting mixed up with the ICCPR? (which NZ has signed up to).
Article 5/ Section 9/ Article 7(ICCPR) prohibits really really reprehensible behaviour. I would be very suprised if even a return to government-sanctioned caning or strapping in state schools would violate these provisions.
Article 19(1) of the Convention on the Rights of the Child - quite possibly, but the UDHR/BORA/ICCPR? No. Not even close. And certainly not "cruel" - which is one step short of torture.
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Graeme Edgeler wrote:
New Zealand is not a signatory to the UDHR.
Sorry, you're quite right -- inexcusably sloppy language on my part! I should have said that "New Zealand voted in favour of ratifying the UDHR which suggests that our government agrees with it" (or, at least, they agreed with it in 1948).
Wow, I'm very surprised to hear that caning isn't prohibited by Article 5 of the UDHR. I know that Amnesty International have certainly claimed that it is a violation (along with other forms of corporal punishment), saying that:
It is clear from statements made by expert and political bodies of the UN and by the European Court that corporal punishment is prohibited by international standards as it violates the absolute prohibition against torture and cruel, inhuman and degrading treatment or punishment. Such treatment or punishment may not be imposed on any person for any reason, no matter how heinous their crime and notwithstanding political instability.
(see this link)
And as long ago as 1978 the European court made a ruling in the case of a teenage boy who was caned:
The European Court has also held that corporal punishment violates the prohibition against torture and other cruel, inhuman or degrading treatment or punishment. It found that the "birching" (whipping with a wooden rod) of a 15-year-old convicted of assault amounted to degrading punishment. [Tyrer Case, Series A 26, 25 April 1978]
I remember quoting this case (or a similar one) to my English teacher in about 1984. At the time it seemed pretty clear-cut to me -- but I'm no legal expert (then or now). My teacher offered to strap me to prove that I was wrong, by the way.
At any rate, numerous child welfare groups have cited Article 5 as a reason for banning physical punishment of children (see here for example). So I think it was reasonable to cite this when explaining their point of view.
And I guess an MP may interpret their moral obligation under Article 5 (with respect to children) differently than would a court ruling on a NZBORA case.
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I should clarify that I've little doubt that judicial corporal punishment would be degrading treatment, I was suggesting surprise at the idea the school corporal punishment would have breached Article 5.
However, it - along with even light smacking - would certainly fall outside the expanisve interpretation that seems to be preferred by the UN of article 19 of the Convention on the Rights of the Child.
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There's a column by Garth George about the bill in this morning's Herald.
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yeah, after reading Garth George's rant it really does make me appreciate Russell's work all the more - a disturbingly rare voice of calm sanity and reasoned consideration opposing a tsumani of misrepresentation of this issue in the msm.
the hysteria of right-wing whackjobs railing against this bill gives me the creeps and i never stop wondering why they are given so much airtime/column space. of course they're usually the first to also wail about child abuse stats too, but then you can hardly expect conservatives to be logically consistent.
the public are unlikely to ever understand the full complexities surrounding this bill's justification (although there are plenty of pretty convincing simple justifications too for that matter).
the "hitting kids is god's way of showing we love them" lobby had a great success with duping the msm into dubbing this the "anti-smacking" bill though. the ignorant outcry would've been a bit more muffled had it been rightly coined the "anti-thrashing" bill.
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and forgive me for shooting fish in a bucket, you can hardly expect garth george to be able to count when he spends so much effort trying not to dribble, but by my reckoning a petition of 600,000 does not constitute a majority of a population of around 4,000,000. me thinks he may have suffered a few too many loving thrashings as a tot.
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Dear old Darth. He's not exactly weighing up the arguments, is he?
And he's making stuff up. Nearly every opinion poll conducted went in favour of civil unions. The anti-homosexual law reform petition was such a shabby affair as to make baby Jesus cry. And he cleverly avoids the fact that while abortion law reform was introduced under a labour government, it was passed under a National one.
Another point he also misses is that it's very rare that people want to reverse those decisions. Even Maxim didn't want a reversal of homosexual law reform. I rather doubt even Darth does. The CIR petition to reverse prostitution law reform was a notorious flop. The drinking age question is the exception. And even there, he fails to note that Jenny Shipley voted for the original bill and that dreadful Helen Clark voted against.
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Dear Lord. What an utterly dishonest and lazy piece of writing.
So the single example he sites against abortion is that is friends are having a baby 'later this year', and it looks like a 'tiny human being floating in the womb, head, trunk and arms and legs and hands and feet perfectly formed and her minuscule heart ticking like a metronome' in the ultrasound. Well fabulous. Is there any information from him about exactly when the baby is going to be born? 2 months? a week? No, no - he just puts 'later this year'. Sly.
At this stage, let's make a couple of things clear about abortion. For someone to have an abortion then one or some of the following legal grounds must be present:
# Serious danger to life
# Serious danger to physical health
# Serious danger to mental health
# Any form of incest or sexual relations with a guardian
# Mental subnormality
# Fetal abnormalityIn addition, other factors which are not grounds in themselves but which may be taken into account are:
* Extremes of age
* Sexual violation (previously rape)In the first 12 weeks of pregnancy, then one can have an abortion at a clinic, after 12 weeks, there must be a medical procedure at a hospital, which, as one might imagine, is not something that the hospital under-takes lightly. So, while a clinic based abortion still requires some strong legal grounds, after 12 weeks, it's a VERY serious business.
At any rate, we're certainly not talking about a case of 'not valuing human life' and creating the mass abortion of unborn children with fingers, feet, heartbeats etc 'to the extent that we can no longer replace ourselves as New Zealanders and have to import foreigners to make up the numbers.'
And dear god, that's without even beginning to analyse the logic behind bringing up the image of 'murdering babies in the womb' and claiming that this is worst form of child abuse in order to justify people being able to discipline their kids by hitting them. So because somehow I don't like the idea of aborting a 'tiny human being floating in the womb, head, trunk and arms and legs and hands and feet perfectly formed and her minuscule heart ticking like a metronome', it must logically follow that I must be in favour of said parents being able to hit their children after they are born? Hmm.
But I guess the idea isn't to actually to inform or enlighten anyone - it's to blurt out an opinion in order to appeal to people's emotions rather than brains. Oddly, this is the kind of thing we usually associate with politicians and we expect newspapers to research and get to the bottom of, in order to force the politicians arguments to be more robust. Surely. SURELY.
So, anyway - my question is: can someone tell me why this is in a newspaper again?
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oh yeah, GG is quite the caricature of the embittered ultra-con masquerading as a journalist but with an apparent inability to read. a bit like fran o-sullivan in that sense. actually the moustaches are the same too. maybe garth is fran?
on a related note, good luck with the Listener column Russell. i see now that not only is its political columnist the partner of Murray McCully, its business columnist a "former" Business Roundtable PR man, but Joanne Black's husband Mr Johnstone is John Key's senior advisor. how very balanced and impartial of them.
perhaps you could start writing the odd political observation R?
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hmm then again, they might consider you too politically biased on account of the fact that you sometimes have a filthy pinko tendency to resort to logic, fact and humanity and stuff, and all that secret conspiracy material hidden away in like - books.
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