Posts by David Haywood
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I've just posted a new article on Southerly:
http://www.publicaddress.net/default,3984.sm
This responds to some of the email messages I've received (RE: my previous post on Section 59) which argue that physical punishment is necessary and beneficial for the child. I don't think anyone has necessarily made such claims on this discussion thread.
The new post is obviously related to the whole Section 59 debate, so I've kept the 'Discuss' button pointing to this thread.
As with the 'Modest Proposal' post I'm not trying to prove anything -- just leave the reader with a mildly interesting question.
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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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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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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 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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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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Ian wrote:
What is the difference between democracy and mob rule?
Human rights -- sure. I don't disagree with your point.
But you must admit that we limit the human rights of children in other ways, e.g. they can't vote.
Well-intentioned people on the other side of the argument genuinely think that children's human rights should be limited when it comes to physical punishment. I don't necessarily agree with them -- but that's what they genuinely believe.
If you can't persuade these people to agree with you in the context of a democratic decision-making process then you're a bit stuck.
So you have to ask the question: is it better to end up at a half-way position (i.e. the Borrows's amendment), or to reject compromise altogether and end up with a status quo that's even worse.
Is it really worth ending up with what you least desire just for the sake of principle? Some people might be inclined to call that a hissy fit.
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Ian wrote:
I like your careful argument... however, it all unravels a bit at the end I believe.
I guess the bit where it all unravels is the bit where our opinions diverge!
Ian wrote:
Chester Borrows' definition (trivial and trifling) is not substantially different from the status quo (reasonable in the circumstances).
It seems to me that there is a considerable difference. Borrows's proposal would explicitly prohibit bruising, welts, cuts, or any punishment involving an implement.
The current Section 59 has allowed all of these things in the past (in fact, I have unfortunately witnessed all of the above being legally enacted on children). It all depends on a jury's definition of "reasonable force". Borrows's amendment puts a concrete definition on the specifics of what can be legally inflicted: it's not open to interpretation. Either the punishment involves bruising, welts, cuts, and/or implements, or it doesn't.
I note that Sir Geoffrey Palmer from the Law Commission gave the opinion that the amendment would "lower the bar considerably on what is covered by section 59, and would be a very significant change to the law as it currently stands". See:
http://www.stuff.co.nz/nelsonmail/3971281a12935.html
Sue Bradford's withdrawal of the Bill... won't be a result of a hissy fit. It will be a long-planned and justified withdrawal...
Perhaps I was being rather provocative when I used the phrase "hissy fit". But I did soften it by adding: "I have considerable sympathy for Bradford's argument, and (for what it's worth) I think she has a point..."
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?
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FletcherB wrote:
Whether they should or do gain adults rights at 16/18/21...
I think you are misunderstanding a very key issue in the human rights argument. To quote what I said in my post:
note: we are only talking about the specific case of human rights with respect to physical punishment -- we are not talking about all human rights.
Bradford is not suggesting that children have all the same human rights as adults. She's not, for example, suggesting that children have the right to vote, etc.
Her amendment only relates to giving children adult rights in terms of physical punishment, i.e. Article 5 rights.
There's nothing in her bill to prevent parents from exercising all the normal punishment rights they would otherwise have -- including time out, etc. Only physical punishment is prohibited.
As you say, this is a complicated subject, and -- given all the shouting in the media -- it's very easy to get confused. In terms of coming to a decision it might be helpful to re-read this paragraph from my post.
An important question in settling [Bradford's human rights] argument is whether non-physical forms of punishment are truly effective in disciplining children. If they aren't effective, then children are in a special human rights category (with regard to punishment) that is different from adults. They must be physically punished for their own good. In other words, the harm they might experience from ineffective parental discipline is worse than the "cruel, inhuman or degrading" punishment.
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WH wrote:
Bradford's principle: All [child abuse] is wrong, but [mild smacking, although it technically contitutes child abuse/assault] is too trivial to be prosecuted.
Burrows's principle: All [child abuse] is wrong, but [mild smacking is not child abuse].Yep, I'd probably agree with the way you've reframed this. I had initially written something along these lines, but then I read Nicky Wagner's (National Party colleague of Chester Borrows) opinion piece in The Press and wondered if I was entirely correct in representing their views:
We believe that this debate is not about whether smacking children is the best form of correction – it is about whether parents should be safe from prosecution if they decide to smack their children.
From:
http://www.stuff.co.nz/nelsonmail/3971281a12935.html
But perhaps I should have stuck with my draft version?